and Industrial Railways cases are illustrative of investigations without formal complaint.247

Investigations relating to consolidation of railroads, to extensions and abandonment of facilities and to determine the aggregate value of the roads in which fair return shall be based, are among the things which may be investigated under Transportation Act, 1920.

§ 301. Procedure in Formal Cases-Complaint. The rules relating to formal complaints and the form thereof are stated in subsequent sections of this chapter.248 By conference ruling the Commission has provided that complaints involving the same or substantially the same principle, subject or state of facts should be included in one complaint; that where the principle involved or the state of facts is substantially the same, two or more complainants may join against two or more carriers in one complaint, and where in such cases two or more complaints have been filed they may be consolidated and heard together.249 Amendments are freely allowed, even to the extent of claiming reparation when there is no claim therefor in the original complaint.2 250

While the Commission's practice is in no degree technical, issues not clearly raised in the pleadings cannot be determined by it. The Commission has said: "A party litigant must by his pleading fairly advise his adversary of the contention which the latter will be expected to meet at the hearing, in order that we may be adequately informed on the resulting record of the facts material to our determination of the controversy. This principle of notice and a fair opportunity for defendant to know what charges he must meet is substantially conformed to when the course of the hearing

247 Re Bills of Lading, 14 I. C. C. 346; Re Bills of Lading, 29 I. C. C. 417; Industrial Railways Case, 29 I. C. C. 212; Second Industrial Railways Case, 34 I. C. C. 596, 55 I. C. C. 469, 56 I. C. C. 272, 52 I. C. C. 671. 248 Secs. 317, et seq.

249 This rule was stated in Conference Ruling No. 206 and is fol

lowed by the Commission although such rulings are not continued to be published.

250 Virginia-Carolina Chemical Co. v. St. Louis, I. M. & S. R. Co., 18 I. C. C. 1; Virginia-Carolina Chemical Co. v. Chicago, R. I. & P. Ry. Co., 18 I. C. C. 3.

unobjected to shows definitely what complainant seeks.251 Good faith both on the part of the complainants and defendants demands that the formal pleadings shall be sufficiently full to disclose the claim or the answer thereto. For a defendant in its answer to say that it neither admits nor denies an allegation the truth or falsity of which could be determined from its records, is not to deal frankly with Commission or complainant, and the complaint should be sufficiently definite to inform the defendant what rate, rule or practice is complained against, and upon what is based the claim of illegality.

§ 302. Notice Before Hearing. To constitute that full hearing required by the statute, notice must be given to the carrier directly affected. Where a complaint is filed a statement thereof must be forwarded to the carrier complained against, "who shall be called upon to satisfy the complaint, or to answer the same in writing.' '252

In hearings without formal complaint where an order against or affecting a particular carrier or carriers, as in suspension and similar cases, is contemplated, notice must be given.

Most rate situations have their influence on other rates and, having this fact in mind, objection was made to an order of the Commission because all carriers thus affected were not served with notice. Replying to the contention, the court said:

"It is obvious that the purpose was to require that notice should be given to the party immediately interested, and not to those remotely concerned. It is a novel and unreasonable proposition that, when rates in a given locality are drawn in controversy, notice must be given to every carrier who may be in the succession of all or any interstate transportation which includes that in question. The procedure prescribed is analogous to that in all legal controversies, and must be deemed sufficient. The objections must be overruled.

251 Commercial Club of Omaha v. Chicago, R. I. & P. Ry. Co., 6 I. C. C. 647; Sinclair & Co. v. Chicago, M. & St. P. Ry. Co., 21 I. C. C. 490; Board of Trade of Chicago v. Atchison, T. & S. F. Ry. Co., 29 I. C. C. 438, 444; Burson Knitting Co. v. C. M. & G. R.

Co., 42 I. C. C. 739, 742; Live Poultry & Dairy Shippers Traffic Asso. v. A. T. & S. F. Ry. Co., 49 T. C. C. 228, 230.

252 Sec. 13 of Act; Sec. 483, post; Fels & Co. v. Pennsylvania R. Co., 23 I. C. C. 483, 486.

"If such an order as is here contested were to be held to be beyond the power of the commission, and that precedent were to be followed, its functions would be frittered away, piecemeal, and the result must be that the power to regulate rates through the means provided by the statute would be so absurdly inadequate as to furnish no reason for its existence. ''253

Speaking of the same question, the Commission said:

"The fact that all of the carriers operating in the Mesaba district and all of the carriers and parties interested in the ore rates are not made parties to this proceeding is immaterial in its bearing upon the legality of this complaint. A complainant cannot be expected to search public and private records with the view of discovering all parties that may be interested in a certain proceeding. Full publicity attends every step of all proceedings before the Commission, and it must be assumed that parties interested will take notice of what is going on. Other parties interested may intervene in the present proceeding if they so desire."

The quoted rule must be read in connection with what the Commission said in the Stevens Grocery Co. case. There it was said: "At the hearing defendant objected to the sufficiency of the complaint because the carriers parties to the movement east of Memphis were not named as defendants. Numerous cases were referred to by parties as supporting their contentions that it is, or is not proper and necessary to bring in issue the through rate or charge and to name the carriers parties thereto, before attacking a factor of such through rate or charge. In the past the procedure in this respect has been varied somewhat, dependent upon the circumstances of the cases. It is important that the true rule be definitely announced and that a uniform policy be established under which parties complainant and defendant may understand what is required. We now lay down the rule, which for the future will be strictly adhered to, that when

253 Louisville & N. R. Co. v. Int. Com. Com., 184 Fed. 118, 127, 128. For further history of the case see Louisville & N. R. Co. v. Int. Com. Com.,

195 Fed. 541, Opinion Com. Ct. No. 4, p. 235, 375; Int. Com. Com. v. Louisville & N. R. Co., 227 U. S. 88, 57 L. Ed. 431, 33 Sup. Ct. 185.

a complaint involves charges applicable to a through shipment the through rate or charge must be brought in issue and the participating carriers must be made defendants. When the through rate or charge is made up of separately established rates or charges, applicable to the through business, the through rate or charge must be attacked as violative of the Act, although the violation may be believed to be occasioned by a particular factor, or factors thereof; in such case, the complainant should be prepared at the hearing to prove the unlawfulness of the through rate itself and that this is due to a particular factor or factors. The sound rule on this point was followed in Commercial Club of Omaha v. A. S. R. Ry. Co., 27 I. C. C. 302; Scott-Mayer Commission Co. v. C., R. I. & P. Ry. Co., 28 I C. C. 529; and Pohlman Bros. Co. v. C., M. & St. P. Ry. Co., 30 I. C. C. 89. That rule will be followed consistently hereafter."

Later, in referring to this case, the Commission said: "The rule is stated in the Stevens Grocery Co. case more broadly than it should be. In determining whether or not a complainant has been damaged by the exaction of unreasonable or unduly preferential reshipping rates the total through charges paid from point of origin must be considered. But this does not hold true of a determination of the reasonableness or justness of the reshipping rate itself. Reshipping rates are not merely divisions of through rates, but are separately established rates generally published by carriers other than those engaged in the inbound movement and without the concurrence of the latter; and the point of reshipment is a rate-breaking point. A change in the reshipping rates, even though it may affect the through charges, will have no effect upon the inbound rates. The inbound carriers have a right to secure reasonable compensation for their part of the haul by reasonable inbound rates. The reasonableness of such inbound rates is in no manner contingent upon reshipping rates. Furthermore, inbound rates used in connection with reshipping rates generally serve also as local rates hence they are subject to review independently of the outbound rates."

As complainants have not always followed the rules and have at times lost reparation claims by not making proper

parties defendant, the decisions of the Commission are rather fully quoted.254

§ 303. Formal Complaints-Answer. The statute requires the defendant to answer the complaint in writing, but neither the statute nor the rule of the Commission hereinafter given states the substance of what the answer shall contain. The word itself connotes the idea of stating what the facts are with reference to the allegations of the complaint. This answer is due "within a reasonable time," to be specified by the Commission, the time being specified in the rule of the Commission as thirty days after service by defendants whose general offices are west of El Paso, Texas, Salt Lake City, Utah, or Spokane, Washington, and twenty days by all other defendants.255

No technical demurrer is necessary, but the legal sufficiency of the complaint may be determined on a motion to dismiss, the practice being analogous to Federal Equity Rule 29.

The statute provides that "no complaint shall at any time. be dismissed because of the absence of direct damage to the complainant;" so a motion to dismiss the complaint of one not then a shipper, but professing an intention to become such, was denied; nor does the complainant have to come before the Commission with clean hands as in a court of equity.256

§ 304. Hearings by the Commission. When complaint is filed and served, the Commission is given discretion "to investigate the matters complained of in such manner and by such means as it shall deem proper. 1257 On all hearings the Commission has "power to require, by subpoena, the attendance and testimony of witnesses and the production of all

254 Lum v. Great Northern R. Co., 21 I. C. C. 558, 561, 562. And see Whiteland Canning Co. v. Pittsburg, C. C. & St. L. Ry. Co., 23 I. C. C. 92, 93. But a participating carrier to a tariff attacked is a necessary party, Reno Grocery Co. v. Southern Pac., 23 I. C. C. 400; Stevens Grocery Co. v. St. L. I. M. & S. Ry. Co., 42 I. C. C.

396, 398; Cairo Board of Trade, 46 I. C. C. 343, 350, 351.

255 See Rules of Commission, Secs. 317, et seq., this Chapter; Sec. 13 of Act; Sec. 483, post.

256 Lum v. Great Northern R. Co., 21 I. C. C. 558.

257 Sec. 13 of Act; Sec. 484, post