carrier admits unreasonableness, it must file new rates as prerequisite to reparation.32 And if these are only to be in effect temporarily to work through the agreed reparation, the whole scheme will be investigated further.33 However, if the Commission is satisfied as to the bona fides of the agreement, the stipulation of parties will be approved. 34

§ 1106. Parties given opportunity to be heard.

Proceedings on complaint of a party take the form of judicial proceedings. Thus a reasonable opportunity will be given for the parties to be heard.35 So where a railroad submits a shipper's claim for carload rating on a mixed carload to the Commission, it will be treated as a complaint and answer, and the cause will proceed judicially.36 If parties have had their day in court, they cannot resist reparation.37 But if no other manufacturers have joined in this complaint, or made independent complaint, it is possible that they may be materially affected by a disturbance of adjustment that has continued for so many years.38 And generally speaking if insufficient carriers are named for the Commission to undertake to settle broad questions the case will not be prosecuted further, for the time being at all events. 38 The Supreme Court is now plainly insistent that all parties before the Commission must be fully apprised of the evidence submitted or to be considered and must be given opportunity to cross-examine witnesses and to inspect documents and to offer evidence in explanation and rebuttal.39 In no other way consistently with

32 Vemis v. St. Louis, I. M. & S. Ry., 15 I. C. C. 136.

33 Holcomb, Hayes & Co. v. Illinois C. R. R., 13 I. C. C. 16.

34 Joice & Co. v. Illinois Central Ry., 15 I. C. C. 239.

35 Business Men's Ass'n v. Chicago & N. W. Ry., 2 Int. Com. Rep. 48, 2 I. C. C. 52.

36 Roth v. Texas & P. Ry., 9 I. C. C. Rep. 602.

37 Kindelon & Co. v. Southern Pacific, 17 I. C. C. 251.

38 National Syrup Co. v. C. & N. W. Ry., 28 I. C. C. 673.

38a Omaha Grain Exchange v. C., R. I. & P. Ry., 28 I. C. C. 680.

39 United States v. B. & O. S. W. Ry., 226 U. S. 14, 27 Sup. Ct. 648.

what we consider the course of the administration of justice can a party maintain its rights or make out its defense. 39a

§ 1107. Hearing duly notified indispensable.

As has been seen in a former chapter, the Commission is not invested with authority to find any rate unreasonable except after full hearing. 40 The policy underlying the section giving the Commission power to revise rates is that rates established by carrier cannot be condemned unless upon full hearing they shall be found unreasonable.11 The Commission, therefore, has jurisdiction to deal only. with those carriers which are parties to the proceedings. 42 And no order entered against a carrier that has not been cited to appear at the hearing. 43 The Commission will not determine an important question of differentials in a general adjustment of rates in a case where only one carrier, operating over but a part of the through route to Atlantic ports, is defendant.44 Discussions of substitution of tonnage at transit points, and of transit rules, reports thereunder, and policing thereof would be pertinent only in a general investigation.45 And reasonableness of extra charges will not be considered where petition contains no allegations in respect thereto.46 It follows that the Commission cannot determine what rates are reasonable for the transportation of other commodities or rates on the same commodities from other points, upon a complaint dealing with specific kinds of commodities from a particular locality.47

394 Interstate Commerce Commission v. L. & N. Ry., 227 U. S. 88, 33 Sup. Ct. 185.

40 Douglas & Co. v. C., R. I. & P. Ry., 21 I. C. C. 541.

41 Anadarko Cotton Oil Co. v. A., T. & S. F. Ry., 20 I. C. C. 43.

42 Griffing v. C. & N. W. Ry., 25 I. C. C. 134.

43 Baker Commercial Club v. O. W. R. R. & N. Co., 25 I. C. C. 281.

44 Board of Trade of Chicago v. I. C. C., 26 I. C. C. 545.

45 In re Advances on Logs, 24 I. C. C. 683.

46 Lesinsky v. A., T. & S. F. Ry., 24 I. C. C. 620.

47 Milburn Wagon Co. v. L. S. & M. S. Ry., 22 I. C. C. 93.

§ 1108. Requisites as to hearings.

As the Act reads, it is, therefore, a limitation upon its jurisdiction that the Commission cannot prescribe a rate without investigation and hearing. 48 And the Commission has often pointed out that no order can be made until after a full hearing as provided in section 15.49 The reasonableness of rates cannot be considered except upon a proceeding which properly puts them in issue.50 And damages are awarded upon the facts established upon the hearing, and not upon the allegations of the complaint.51 The Commission can make findings only upon such issues as are clearly raised by the complaint, while weighing all pertinent facts and testimony adduced. 52 Where the Commission has suspended rates in one territory upon hearing, it cannot pass upon the reasonableness of rates in other territory, none of the carriers in the latter territory having been made parties. 53 If there are neither sufficient parties nor sufficient information before the Commission to enable it to pass upon the question of issues involved it will not pass upon the through rates which would be directly affected.54 Where a complaint failed to point out any discrimination and did not ask that any discrimination be corrected, the Commission will decline to consider the question of discrimination, although the petition generally alleged a violation of the Act.55 The determination of broad questions should be in some comprehensive proceeding to which the parties in interest can be made parties. 56 A case involving local rates will, therefore, usually be ordered to be heard before at a cen

48 In re Express Rates, 28 I. C. C. 132.

49 Augusta & Savannah Steamboat Co. v. O. S. S. Co. of Savannah, 26 I. C. C. 380.

50 Douglas & Co. v. C., R. I. & P. Ry., 21 I. C. C. R. 541.

51 Beekman Lumber Co. v. M. C. R. R., 21 I. C. C. R. 276.

52 Sinclair & Co. v. C., M. & St. P. Ry., 21 I. C. C. 490.

53 In re Advances in Rates on Locomotives and Tenders, 21 I. C. C. 103. 54 In re Advances of Rates on Livestock, 21 I. C. C. 119.

55 United States Leather Co. v. S. Ry., 21 I. C. C. 323.

56 In re Advances in Class Rates, 27 I. C. C. 268.

tral point in the territory immediately affected by the rates. 57

§ 1109. Course of the proceedings.

It is, of course, elemental that the Commission must observe the requirements of the Act for notice and hearing; and keep to the provisions of the statute as to process and procedure. 58 If the petition is not specific, though plainly sufficient to constitute the basis for an award of damages, the defendants are entitled, before the hearing, to a specification showing in detail the amounts for which recovery is sought.59 Upon a complaint alleging undue preference, it was held that the question of the reasonableness per se of rates is automatically imported into a case through the suspension of the tariffs.60 As each case must be determined on its own merits, the Commission cannot, on the record in this case, determine what rule or practice should obtain at milling-in-transit points generally throughout the country.61 Notice of complaint need only be given to those directly concerned, not to those remotely interested.62 The Commission has tried to simplify its practice and procedure, without permitting technical matters to interfere with substantial results.63 Though it appeared at the hearing that the joint through rate was in excess of the sum of the locals, the Commission held that the amount of the through rate was not in issue upon a complaint seeking damages on the basis of an unpublished division of the through rate.64 Upon complaint of an overcharge, the Commission, on its own motion, may

57 Delaware State Grange v. New York, P. & N. R. R., 2 Int. Com. Rep. 187, 2 I. C. C. 309.

58 Stone & Meyers Co. v. Louisville & W., 14 I. C. C. 199.

59 Cattle Raisers' Ass'n v. Chicago, B. & Q. R. R., 10 I. C. C. Rep. 83. 60 Douglas & Co. v. C., R. I. & P. Ry., 21 I. C. C. 97.

61 Brook Rauch Mill & Elevator Co.

v. St. L., I. M. & S. Ry., 21 I. C. C. 651.

62 Louisville & N. R. R. v. Interstate Commerce Commission, 184 Fed. 118.

63 Cincinnati & Columbus Traction Co. v. B. & O. S. W. R. R., 20 I. C. C. 486.

64 Beekman Lumber Co. v. St. L. & S. F. R. R., 21 I. C. C. 270.

66

set the case down for further hearing, and found the rate unreasonable, though there was no overcharge.65 Oral argument is allowed in cases affecting rates and practices if requested when testimony closed. And if briefs are submitted it is to be noted that the parties cannot themselves extend the time for filing briefs by stipulation between themselves, as cases before the Commission are not analogous to private litigation.67

§ 1110. Limitations of actions.

The statute of limitations contained in the Act bars a reparation claim on shipments which have been delivered to the complainant more than two years prior to the filing of the complaint.68 And conversely the right to reparation being secured to shippers for two years by the Act, the Commission cannot qualify that right by barring a complainant for laches within that time, or by demanding that the proof shall be conclusive.69 The Act provides that no order for reparation shall be made unless the claim is filed with the Commission within two years from the time the cause accrues.70 Without regard to the date of payment of charges, the cause of action of a shipper accrues when a shipment is delivered. To be exact, claims presented

71

65 Oster Bros. v. M. L. & T. R. R. & S. S. Co., 21 I. C. C. 511.

66 Ullman v. Adams Express Co., 14 I. C. C. 585.

67 Ullman v. Adams Express Co., 14 I. C. C. 585.

Quare, whether the two year limitation on reparation suits applies to enforcement suits. Lynde v. D. L. & W. Ry., 170 Fed. 847.

68 St. Louis Blast Furnace Co. v. V. Ry., 24 I. C. C. 360; see also Anaconda Copper Mining Co. v. C. & E. R. R., 19 I. C. C. 592.

69 Thomspon Lumber Co. v. Interstate Commerce Commission, 193 Fed. 682.

70 National Wool Growers' Ass'n v. O. S. L. R. R., 25 I. C. C. 675.

71 Arkansas Fertilizer Co. v. St. L., I. M. & S. Ry., 25 I. C. C. 266.

Claims for damages held to be barred because two years had elapsed since the delivery of the goods to the consignee, although within two years of the filing of the complaint some of the charges were paid. Standard Oil Co. v. C., T. T. R. R. Co., 21 I. C. C. 460. Each item is subject to being barred upon the running of the two years against it. National Refining Co. v. A., T. & S. F. Ry., 8 I. C. C. 389.