defendant has notice of the character of the order asked for and an opportunity to show that it would be unreasonable to grant it, it has not been deprived of its right to a hearing.43 All this is involved in our notion of due process of law. Whether the circumstances of the exercise of the power to give orders are such as conduce to justice may therefore be the subject of inquiry by the courts. This can always be done, as the questions raised are in a true sense justiciable. Whether the order deprives the carrier of a constitutional or statutory right, and whether the hearing was adequate and fair, are all matters within the scope of the judicial power. In the comparatively few cases in which such questions have arisen it has been pointed out that it has invariably been recognized that administrative orders quasi-judicial in character are void(1) if a hearing was denied; (2) if although granted it was inadequate or manifestly unfair; (3) if the finding was contrary to the indisputable character of the evidence; (4) or if the facts found do not as a matter of law support the order made.44

§ 1144. Action upon mistaken conclusions of law.

Congress has made the Commission's findings prima facie true, which is as far as it can constitutionally go towards making them conclusive. The Commission's findings of fact are often so intermixed with questions of law that an examination and even a construction of the facts may be necessary in order to keep the Commission within its powers. This necessitates an examination of the evidence, not for the purpose of reconciling conflicts of testimony or of deciding upon pure questions of fact, but only

43 Oregon Ry. & N. Co. v. Fairchild, 224 U. S. 510, 56 L. ed. 863, 32 Sup. Ct. 535.

See also United States v. Baltimore & O. S. W. Ry., 226 U. S. 14, 57 L. ed. 104, 33 Sup. Ct. 5, discussed in the next section.

44 Atlantic C. L. Ry. v. Interstate Commerce Commission, 194 Fed. 449.

See also Interstate Commerce Commission v. Louisville & N. Ry., 227 U. S. 88, 57 L. ed. 431, 33 Sup. Ct. 185, discussed in the next section.

47

46

to determine whether what purports to be a finding of fact is so involved with questions of law as to be in substance and effect a decision of the latter. 45 The conclusions of the Commission are also subject to review if it has excluded facts and circumstances that ought to have been considered. Even when the facts are not disputed, the Commission's power to make the order in question is open to review, and if not warranted by law its order may be enjoined.1 In the exercise of this function of review the courts have reversed many orders of the Commission because of erroneous conclusions of law. Before the longand-short haul clause was amended in 1910, the Commission at first did not recognize the existence of competition as a difference in circumstance and condition which justified a difference in rates, and on this point it was frequently reversed by the courts. 48 On the following ques45 Kansas City Ry. v. Albers Commission Co., 223 U. S. 573, 56 L. ed. 556, 32 Sup. Ct. 316.

46 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; Interstate Commerce Commission v. Alabama Mid. Ry., 168 U. S. 144, 42 L. ed. 414, 18 Sup. Ct. 45; Louisville & N. Ry. v. Behlmer, 175 U. S. 648, 44 L. ed. 309, 20 Sup. Ct. 209; Illinois Cent. Ry. v. Interstate Commerce Commission, 206 U. S. 441, 51 L. ed. 1127, 27 Sup. Ct. 700.

47 Interstate Commerce Commission v. B. & O. Ry., 225 U. S. 326, 56 L. ed. 1107, 32 Sup. Ct. 742; Stickney v. Interstate Commerce Commission, 164 Fed. 638.

48 Interstate Commerce Commission v. A., T. & S. F. Ry., 149 U. S. 264, 37 L. ed. 727, 13 Sup. Ct. 837, 50 Fed. 295, 4 I. C. C. 104; Texas

& Pacific Ry. v. Interstate Commerce Commission, 162 U. S. 197, 40 L. ed. 940, 16 Sup. Ct. 666, 57 Fed. 948, 52 Fed. 187, 4 I. C. C. Rep. 62, 4 I. C. C. 447; Interstate Commerce Commission v. Clyde Steamship Co., 181 U. S. 29, 45 L. ed. 729, 21 Sup. Ct. 512, 93 Fed. 83, 88 Fed. 186, 5 I. C. C. 324; East Tennessee, V. & G. Ry. v. Interstate Commerce Commission, 181 U. S. 1, 45 L. ed. 719, 21 Sup. Ct. 512, 99 Fed. 52, 85 Fed. 107, 5 I. C. C. 546; Interstate Commerce Commission v. Ala. Mid. Ry., 168 U. S. 144, 42 L. ed. 414, 18 Sup. Ct. 45, 74 Fed. 715, 69 Fed. 227, 6 I. C. C. 1; Louisville & N. Ry. v. Behlmer, 175 U. S. 648, 44 L. ed. 309, 20 Sup. Ct. 209, 83 Fed. 898, 71 Fed. 835, 6 I. C. C. 257; Interstate Commerce Commission v. So. Ry., 105 Fed. 703, 6 I. C. C. 588; Brewer & Hanleiter v. C. of Ga. Ry., 84 Fed. 258, 7 I. C. C. 224; Interstate Commerce Commission v. L. & N. Ry., 190 U. S. 273, 47 L. ed. 1047, 23 Sup. Ct. 687, 108 Fed. 988, 101 Fed. 146, 102 Fed. 709, 7 I. C. C.

tions of law and fact the decisions of the Commission were overruled, the courts holding that a bridge is not a common carrier; 49 that competition is to be considered in fixing rates under section 3; 50 that party rates are not discriminatory; 51 that the granting of free cartage at a terminal is not a rebate; 52 nor a violation of the long-andshort-haul clause; 53 that there is no discrimination against shippers if they are not offered a facility for which they have never asked; 54 that the value of an article should be considered in determining the rate to be paid; 55 that a switching charge which is reasonable in itself cannot be condemned because when added to the through charge the whole is unreasonable; 56 that an elevator allowance paid to a shipper for treatment of his own grain at his own elevator is not a rebate; 57 that a carrier may charge different rates on a commodity at different seasons of the year;

431; Interstate Commerce Commission v. So. Ry., 122 Fed. 800, 117 Fed. 741, 8 I. C. C. 571, 8 I. C. C. 409; Interstate Commerce Commission v. So. Pac. Ry., Circuit Court, California (not reported), 8 I. C. C. 481; Interstate Commerce Commission v. N. C. & St. L. Ry., 120 Fed. 934, 8 I. C. C. 503; Interstate Commerce Commission v. C. P. & V. Ry., 124 Fed. 624, 9 I. C. C. 118.

49 Kentucky & Indiana Bridge Co. v. L. & N. Ry., 37 Fed. 567, 2 I. C. C. 193, 2 I. C. C. 162.

50 Interstate Commerce Commission v. C. G. W. Ry., 209 U. S. 108, 52 L. ed. 705, 28 Sup. Ct. 493.

51 Interstate Commerce Commission v. B. & O. Ry., 145 U. S. 263, 40 L. ed. 699, 12 Sup. Ct. 844, 43 Fed. 37, 3 I. C. C. 465.

52 Interstate Commerce Commission v. D., G. H. & M. Ry., 167 U. S. 633, 42 L. ed. 306, 17 Sup. Ct. 986, 57 Fed. 1005, 3 I. C. C. 613.

53 Interstate Commerce Commis

58

sion v. A., T. & S. F. Ry., 149 U. S. 264, 37 L. ed. 727, 13 Sup. Ct. 837, 50 Fed. 295, 4 I. C. C. 104.

54 Penn Refining Co. v. W. N. Y. & P. Ry., 208 U. S. 208, 52 L. ed. 456, 28 Sup. Ct. 268, 137 Fed. 343, 82 Fed. 192, 6 I. C. C. 449, 6 I. C. C. 378, 6 I. C. C. 52, 5 I. C. C. 415.

55 Interstate Commerce Commission v. D., L. & W. Ry., 64 Fed. 723, 6 I. C. C. 148.

56 Interstate Commerce Commission v. Stickney, 215 U. S. 98, 54 L. ed. 112, 30 Sup. Ct. 66, 164 Fed. 638, 12 I. C. C. 507, 12 I. C. C. 6, 11 I. C. C. 277, 10 I. C. C. 83.

57 Interstate Commerce Commission v. Diffenbaugh, Union Pac. Ry. v. Peavey, 222 U. S. 42, 56 L. ed. 83, 32 Sup. Ct. 22, 176 Fed. 409, 14 I. C. C. 551, 14 I. C. C. 510, 14 I. C. C. 317, 14 I. C. C. 315, 13 I. C. C. 498, 12 I. C. C. 85, 10 I. C. C. 309.

58 Interstate Commerce Commission v. L. & N. Ry., 73 Fed. 409, 5 I. C. C. 466.

that a carrier is entitled to a reasonable profit on any extra service which it performs; 59 that the reservation of the right of routing to the initial carrier is not prohibited by the Act; 60 that a shipper is not legally entitled to ship on a local rate to one point and thence reship on a local rate to another point when the through rate is greater than the combination of the locals; 61 that the Commission cannot compel by injunction the filing of reports that it has not asked for; 62 that payment of a lighterage allowance on a shipper's own goods for the use of shipper's terminal was not discriminatory; that a traction company is not a lateral branch line of a railway within the meaning of section 15; 64 that tap lines are common carriers; 65 and that an existing through route is not unsatisfactory simply because many travellers prefer another one.66

§ 1145. Action contrary to evidence.

63

The Commission's conclusions of fact are accepted as final provided there is substantial evidence to support them. Evidence is as necessary to the discharge of the Commission's quasi-judicial functions as is a hearing, and a finding without evidence to support it is arbitrary and

59 Southern Ry. v. St. Louis Hay & Grain Co., 214 U. S. 297, 53 L. ed. 1004, 27 Sup. Ct. 678, 153 Fed. 728, 149 Fed. 609, 11 I. C. C. 90.

60 Southern Pacific Ry. v. Interstate Commerce Commission, 200 U. S. 536, 50 L. ed. 585, 26 Sup. Ct. 330, 137 Fed. 606, 132 Fed. 829, 123 Fed. 597, 9 I. C. C. 182.

61 Hope Cotton Oil Co. v. T. & P. Ry., not reported, see 20th Ann. Rep. of I. C. C. 46, 10 I. C. C. 696.

62 United States v. Union Stockyards, 226 U. S. 286, 57 L. ed. 226, 33 Sup. Ct. 83, 192 Fed. 348, 192 Fed. 330, 1 Com. Ct. 189, 225; Ex parte Docket No. 25.

63 United States v. B. & O. Ry., 231 U. S. 274, 56 L. ed. 1107, 34 Sup. Ct.

75, 200 Fed. 779, Commerce Court, No. 38, 20 I. C. C. 200, 17 I. C. C. 40.

64 United States v. B. & O. S. W. Ry., 226 U. S. 14, 57 L. ed. 104, 33 Sup. Ct. 5, Commerce Court, No. 60, 195 Fed. 962, 20 I. C. C. 486.

65 Tap Line Cases, 234 U. S. 1, 58 L. ed. 1185, 34 Sup. Ct. 741, 209 Fed. 224, 23 I. C. C. 549, 23 I. C. C. 277, 234 U. S. 29, 34 Sup. Ct. 741, 58 L. ed. 1185, 34 Sup. Ct. 741, 209 Fed. 260, 23 I. C. C. 549, 23 I. C. C. 277. 66 Interstate Commerce Commission v. No. Pac. Ry., 216 U. S. 538, 54 L. ed. 608, 30 Sup. Ct. 155, Circuit Court not reported, see 23d Annual Report of Interstate Commerce Commission, 37, 16 I. C. C. 300.

void. Hence when it is contended that an order the enforcement of which is resisted was rendered without any evidence whatever to support it, the consideration of such a question involves not an issue of fact, but one of law which it is the duty of the courts to examine and decide. This may be done in a suit for damages on an order of the Commission awarding reparation." It is not enough for the Commission to say that its order is based on its own investigation independent of the testimony of witnesses.70 "Such an investigation is quite different from a view by a jury taken with notice and subject to the order of a court, and different again from the question of the right of the Commission to take notice of results reached by it in other cases, when its doing so is made to appear in the record and the facts thus noticed are specified so that matters of law are saved." In reviewing an order of a State commission directing a carrier to make track connections with another carrier, the court said, "Here there is no evidence of inadequate service, no proof of public complaint or of a public demand, and no testimony that any freight had been offered in the past for shipment between the points named, or that any such freight would be offered in the future; nor was there any evidence whatever as to the volume of freight that would use these tracks or that the saving in freight and time to the shipper would justify the admitted expense to the carrier, whether that expense be $7,500, as found by the Commission, or $21,000, as claimed by the carrier." 72 Commerce, however, a suit in

67 Interstate Commerce Commission v. L. & N. Ry., 227 U. S. 88, 57 L. ed. 431, 33 Sup. Ct. 185.

68 Florida East Coast Line V. United States, 234 U. S. 167, 58 L. ed. 1267, 34 Sup. Ct. 867; Louisville & Nashville Ry. v. Finn, 235 U. S. 601, 35 Sup. Ct. 146.

69 Atlantic Coast Line v. Interstate Commerce Commission, 194 Fed. 449.

Under the Act to Regulate the Federal courts to enjoin

70 Oregon R. R. & N. Co. v. Fairchild, 224 U. S. 510, 56 L. ed. 863, 32 Sup. Ct. 535.

71 Justice Holmes in United States v. B. & O. Southwestern Ry., 226 U. S. 14, 20, 57 L. ed. 104, 33 Sup. Ct. 5.

72 Oregon R. R. & N. Co. v. Fairchild, 224 U. S. 510, 531, 56 L. ed. 863, 32 Sup. Ct. 535.