with legal capacity to appear as party plaintiff or defendant in the Federal courts.58 It has also been described as an administrative board 59 or an administrative tribunal.60 It has frequently been held to have quasi-judicial power,61 and in one case it was said that its functions were those of referees or special commissioners.62 Before the rate law of 1906 the Supreme Court held that it was vested with powers partly judicial and partly executive, but not legislative.63 But in a recent case the Supreme Court, in distinguishing the Commission's power to award reparation and its authority to fix rates, uses these words: "One is made by the Commission in its quasi-judicial capacity to measure past injuries sustained by a private shipper; the other in its quasi-legislative capacity, to prevent future injury to the public." 64 The Commission has characterized itself as an administrative body,65 and as an administrative and quasilegislative body,66 but with a jurisdiction analogous to that of a court of equity.67 It has further said that it is "a select jury to pass upon the reasonableness and justice of railroad rates, rules and practices." 68 The authority of the Commission to control the charges of carriers was for a long time

58 Texas & Pacific Ry. v. Interstate Commerce Commission, 162 U. S. 197, 40 L. ed. 940, 16 Sup. Ct. 666.

59 Cincinnati, N. O. & T. P. Ry. v. Interstate Commerce Commission, 162 U. S. 184, 40 L. ed. 935, 27 Sup. Ct. 948.

60 Texas & Pacific Ry. v. Abilene Cotton Oil Co., 204 U. S. 426, 51 L. ed. 553, 27 Sup. Ct. 350.

61 Interstate Commerce Commission v. C., N. O. & T. P. Ry., 64 Fed. 981; Interstate Commerce Commission v. L. & N. Ry., 73 Fed. 409; Interstate Commerce Commission v. C., N. O. & T. P. Ry., 76 Fed. 183; Texas & Pacific Ry. v. Interstate Commerce Commission, 162 U. S. 197, 40 L. ed. 940, 16 Sup. Ct. 666;

Interstate Commerce Commission v. C., N. O. & T. P. Ry., 167 U. S. 479, 42 L. ed. 243, 17 Sup. Ct. 896.

62 K. & I. B. Co. v. L. & N. Ry., 37 Fed. 567.

63 Interstate Commerce Commission v. C., N. O. & T. P. Ry., 167 U. S. 479, 42 L. ed. 243, 17 Sup. Ct. 896.

64 Baer Brothers v. D. & R. G. Ry., 233 U. S. 479, 58 L. ed. 1055, 34 Sup. Ct. 641.

65 M. & K. Shippers' Ass'n v. M., K. & T. Ry., 12 I. C. C. 483. 66 In re Jurisdiction in Alaska, 19 I. C. C. 81.

a subject of controversy, because the vesting of such authority in the Commission seemed to be a delegation by Congress of its legislative power. This doubt was due to the fact that in common-law jurisdictions the distinction between legislation and administration has not been extensively applied, and even yet, courts which do not question the constitutionality of the powers vested in administrative commissions continue to describe them as legislative bodies.69 In the case of the Commission, however, it is now well recognized that its authority over the charges of carriers is administrative rather than legislative. Congress has laid down general rules with regard to rates and has created the Commission as an administrative agent for the purpose of enforcing them.70

§ 1134. The functions of the Commission.

A fundamental function of the Commission is to make findings of fact in the cases which come before it. Whether a rate is reasonable,"1 or discriminatory,72 whether a carrier's

69 The courts may not substitute their judgment as to rates "for that of the legislature or of the railroad commission exercising its delegated power." Louisville & Nashville Ry. v. Garrett, 231 U. S. 298, 58 L. ed. 229, 34 Sup. Ct. 48.

70 Buttfield v. Stranahan, 192 U. S. 470, 48 L. ed. 525, 24 Sup. Ct. 349; Union Bridge Co. v. United States, 204 U. S. 364, 51 L. ed. 523, 27 Sup. Ct. 367; United States v. Grimaud, 220 U. S. 506, 55 L. ed. 563, 31 Sup. Ct. 480; Interstate Commerce Commission v. Goodrich Transit Co., 224 U. S. 194, 56 L. ed. 729, 32 Sup. Ct. 436; Kansas City Southern Ry. v. United States, 231 U. S. 423, 58 L. ed. 296, 34 Sup. Ct. 125.

71 Cincinnati, N. O. & T. P. Ry. v. Interstate Commerce Commission, 162 U. S. 184, 40 L. ed. 935, 16 Sup. Ct. 700; Texas & Pacific Ry. v.

Interstate Commerce Commission, 162 U. S. 197, 40 L. ed. 940, 16 Sup. Ct. 666; Illinois Central Ry. v. Interstate Commerce Commission, 206 U. S. 441, 51 L. ed. 1128, 27 Sup. Ct. 700; Interstate Commerce Commission v. C., R. I. & P. Ry., 218 U. S. 88, 54 L. ed. 946, 30 Sup. Ct. 651; So. Pac. Ry. v. Interstate Commerce Commission, 219 U. S. 433, 55 L. ed. 283, 31 Sup. Ct. 288; Interstate Commerce Commission v. Nor. Pac. Ry., 222 U. S. 541, 56 L. ed. 308, 32 Sup. Ct. 108; Louisville & Nashville Ry. v. Garrett, 231 U. S. 298, 58 L. ed. 229, 34 Sup. Ct. 48; Atchison, T. & S. F. Ry. v. United States, 232 U. S. 199; Boston & Maine Ry. v. Hooker, 233 U. S. 97, 58 L. ed. 868, 34 Sup. Ct. 526.

72 Illinois Cent. Ry. v. Interstate Commerce Commission, 206 U. S. 441, 51 L. ed. 1128, 27 Sup. Ct. 700;

75.

practice operates as a preference,73 whether a spur-track is part of a carrier's terminal facilities,74 whether there is competition between carriers, all these are questions of fact, which are peculiarly within the province of the Commission. The latter is an expert body, 76 and its findings are treated with the respect "due to the judgments of a tribunal appointed by law and informed by experience." When based upon evidence, the Commission's determinations of fact are conclusive, and will not be re-examined in the courts." "This court,' said Justice Hughes, "cannot substitute its judgment for that of the Interstate Commerce Commission upon matters of fact within the province of the Commission." 78 Even when the facts are undisputed, it is the judgment of the Commission and not of the courts which is to govern. And if the Commission, through an erroneous construction of the Act, has failed to find the facts, the courts will not themselves proceed to an original investigation, but will correct the error of law and remand the case to the Commission for the due discharge of its functions.79 Even if the language of the Act Baltimore & Ohio Ry. v. United States, 215 U. S. 481, 54 L. ed. 292, 30 Sup. Ct. 164; Interstate Commerce Commission v. D., L. & W. Ry., 220 U. S. 235, 55 L. ed. 448, 31 Sup. Ct. 392.

73 Baltimore & Ohio Ry. v. Pitcairn Coal Co., 215 U. S. 481, 54 L. ed. 292, 30 Sup. Ct. 164; Interstate Commerce Commission v. D., L. & W. Ry., 220 U. S. 235, 55 L. ed. 448, 31 Sup. Ct. 392.

74 Los Angeles Switching Case, 234 U. S. 294, 58 L. ed. 1319, 34 Sup. Ct. 814.

75 Illinois Central Ry. v. Interstate Commerce Commission, 206 U. S. 441, 51 L. ed. 1128, 27 Sup. Ct. 700. 76 Smyth v. Ames, 169 U. S. 466, 42 L. ed. 819, 18 Sup. Ct. 418; Joynes v. Penn. Ry., 17 I. C. C. 361.

77 Illinois Central Ry. v. Interstate Commerce Commission, 206 U. S.

441, 51 L. ed. 1128, 27 Sup. Ct. 700; Baltimore & O. R. Co. v. United States, 215 U. S. 481, 54 L. ed. 292, 30 Sup. Ct. Rep. 164; Interstate Commerce Commission v. Delaware, L. & W. R. Co., 220 U. S. 235, 55 L. ed. 448, 31 Sup. Ct. Rep. 392; Interstate Commerce Commission v. Union P. R. Co., 222 U. S. 541, 56 L. ed. 308, 32 Sup. Ct. Rep. 108; Interstate Commerce Commission v. Louisville & N. R. Co., 227 U. S. 88, 57 L. ed. 431, 33 Sup. Ct. Rep. 185; Atchison, T. & S. F. R. Co. v. United States, 232 U. S. 199, 58 L. ed. 568, 34 Sup. Ct. Rep. 291; Los Angeles Switching Case, 234 U. S. 294, 58 L. ed. 1319, 34 Sup. Ct. 814.

78 United States v. L. & N. Ry., 235 U. S. 314, 35 Sup. Ct. 113.

79 Interstate Commerce Commission v. Clyde Steamship Co., 181 U. S. 29, 45 L. ed. 729, 21 Sup. Ct. 512.

were not clear, it is obvious that the ends which Congress had in view in the enactment of the Act and its amendments could not be attained by any other construction. This body of legislation imposes upon both carriers and shippers many obligations to which they had not before been subject, and these require, in the words of Chief Justice White, "official unity of action which could only be brought about by a single administrative initiative and primary control. To that end the Act (sec. 11) created an administrative body endowed with what may be in some respects qualified as quasi-judicial attributes, to whom was confided the enforcement of those provisions of the Act which essentially exacted unity in order that they might beneficially operate. Such being the function of the Commission, it must be allowed a large degree of discretion as to the evidence upon which it will base its judgments,81 and its findings must be given a presumption of truth.82 Hence in proceedings brought to enforce an order of the Commission, a carrier which disputes the finding of facts upon which it was based must assume the burden of proof.83 But on the other hand, should the Commission abuse its discretion and under the guise of an administrative order should draw up what would amount to a code, such action would transcend its administrative functions and would be invalid.84

80 Proctor and Gamble v. United States, 225 U. S. 282, 56 L. ed. 1091, 32 Sup. Ct. 761; Texas & Pacific Ry. v. Abilene Cotton Oil Co., 204 U. S. 426, 51 L. ed. 553, 27 Sup. Ct. 350; Mitchell Coal Co. v. Penn. Ry., 230 U. S. 247, 57 L. ed. 1472, 33 Sup. Ct. 916.

81 Louisville & Nashville Ry. v. Interstate Commerce Commission, 184 Fed. 118, 195 Fed. 541; Atchison, Topeka & Santa Fe Ry. v. United States, 203 Fed. 56.

82 Interstate Commerce Commission v. Louisville & Nashville Ry., 102 Fed. 709, 118 Fed. 616; Atlantic

91 80

Coast Line Ry. v. Florida, 203 U. S. 256, 51 L. ed. 174, 27 Sup. Ct. 108; Illinois Cent. Ry. v. Interstate Commerce Commission, 206 U. S. 441, 51 L. ed. 1128, 27 Sup. Ct. 700; Interstate Commerce Commission v. C., R. I. & P. Ry., 218 U. S. 88, 54 L. ed. 946, 30 Sup. Ct. 651.

83 Interstate Commerce Commission v. L. & N. Rd. Co., 118 Fed. 613; Interstate Commerce Commission v. C. H. & D. Ry., 146 Fed. 559.

84 La. & Pac. Ry. v. United States, 209 Fed. 24.

§ 1135. Preliminary action by the Commission neces

sary.

Section 9 of the Act provides that any persons claiming to be damaged by any common carrier subject to the Act may either make complaint to the Commission in the prescribed mode or may bring suit in their own behalf in any district court of the United States of competent jurisdiction, for the recovery of the damages for which the carrier may be liable under the Act. But no one may pursue both of these remedies, and election must be made between them. Section 22 provides that nothing in this Act shall in any way abridge or alter the remedies already existing at common law or by statutes, but the provisions of this Act are in addition to such remedies. The language of these sections led to the assertion of the claim that a shipper who had been subjected to an unreasonable or discriminatory charge might exercise a choice as to whether he would appeal to the courts for redress or would complain to the Commission. It is obvious, however, that such a construction would defeat one of the chief purposes of the Act, which was to insure that rates should be uniform and non-discriminatory. To this end carriers are required to file their rate schedules with the Commission, and these then become the only legal charges until they are altered as provided by law. But if it were possible for shippers, without a prior hearing by the Commission, to appeal to the courts for an award of damages on the ground that the rates so established are unreasonable, the result would inevitably be such a variety of decisions by the various courts that no uniform standard of rates would be possible, and the Commission would be powerless to maintain that equality and uniformity of rates which the Act makes it its duty to maintain. Hence the courts hold that under sections 9 and 22 an individual will be heard by the courts only in those cases in which they can grant redress consistently with the context of the Act without previous action by