an order of the Interstate Commerce Commission fixing charges is not confined to an ascertainment of what was determined by the Commission and to a consideration of the sufficiency of the facts as determined by it to sustain the order; but on the contrary the hearing may be de novo, and may include the taking and consideration of evidence other than that before the Commission.73

§ 1146. Limitation to evidence in the record.

This means that in order to have what may pass as due process of law there cannot be substantial disregard of our ancient traditions. The Commission is not justified in condemning rates and making revisions upon mere impressions and comparisons, but may act only upon facts and conditions duly established. In this light the right to a hearing which the Act provides must be fully protected. Manifestly there is no hearing in any true sense unless the party knows what evidence is offered or considered, and is given opportunity to explain and refute it. This is not merely a matter of proper construction of the Act, it is a right which comes from the Constitution itself. Even though it be recognized that the Commission is a body of experts, it may not condemn a rate as unreasonable merely upon the knowledge and accumulated experience of its members, but may do so only upon a full hearing giving opportunity to the carrier to be heard. This argument was brought out fully in the Supreme Court recently where the contention was made that the findings and orders of the Commission under section 15 might be originally supported and subsequently defended by information which the Commission had gathered under section 12 for general purposes. But the Supreme Court would have none of this where the rights of parties were involved. When the point was raised apparently for the first time in United States v. Baltimore & Ohio South73 Missouri, K. & T. Ry. Co. v.

Interstate Commerce Commission, 164 Fed. 645.

western Railroad,74 there was no question about the attitude of the Supreme Court. The Supreme Court is now plainly insistent that all parties before the Commission in any proceedings directed against them 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. In no other way consistently with what we consider due course of the administration of justice can a party maintain its rights or make out its defense. Moreover, as the Supreme Court has keenly appreciated, in no other way can the courts inquire as to the existence of evidence upon which the finding might be based; for otherwise, even though it appeared that the order was without evidence, the manifest deficiency could always be explained on the theory that the Commission had before it extraneous, unknown, but presumptively sufficient, information to support the finding.

§ 1147. Conclusiveness of Commission findings.

If, however, the Commission's conclusion is supported by evidence it is final. The evidence must be substantial; the public interests involved are so many and so vast that a mere scintilla of proof is not enough.75 Where there is a very considerable mass of testimony, which, if believed

74 226 U. S. 14, 57 L. ed. 104, 33 Sup. Ct. 5.

In a petition to the Circuit Court to enforce an order of the Commission before the judge sitting without a jury, the full report of the Commission, containing a commingled statement of opinion drawn from the facts and of conclusions of law, as well as of the facts themselves, was admitted in evidence, complainant stating to the court the nature of said report and offering it in evidence in so far as the facts therein contained were material or competent.

The court held the admission of said report was not prejudicial on the ground that it included the extraneous opinions and conclusions of the Commission. Chicago, B. & Q. R. R. Co. v. Feintuch, 191 Fed. 482.

75 Interstate Commerce Commission v. Un. Pac. Ry., 222 U. S. 541, 56 L. ed. 308, 32 Sup. Ct. 108; Louisville & N. Ry. v. Interstate Commerce Commissions, 195 Fed. 541; L. & P. Ry. v. United States, 209 Fed. 242.

by the Commission, would justify it in finding a rate unreasonable and it appears that it has based its decision on such testimony, the condition precedent to the exercise of its power to fix reasonable rates has been met.76 In a coal rate case there was evidence before the Commission as to cost of transportation, operating expenses, interest, depreciation, other rates for transporting coal, markets, allowances, terminal expenses and the life of the carrier and other conditions. On appeal the court held that the order reducing rates could not be declared invalid on the ground of lack of evidence." It is not for the courts to say whether the Commission has properly attached great or little weight to evidence adduced upon a given point or whether the conclusion reached by the Commission upon testimony as to facts alone shows a mistake as to some particular fact not essential or vital to the proceeding, or an inadvertency, or is not such a conclusion as the courts might have reached. If the particular matter in issue and inquired into was one of fact and a full hearing was afforded and the conclusion reached is supported by substantial evidence, it will not be nullified by the courts.78 Whether the Commission gives much or little weight to a particular piece of evidence or regards it as controlling in arriving at a result is immaterial,79 since this is a question of fact and not of law.80 But the legal effect of evidence is a question of law. The Commission, even when acting in its quasijudicial capacity, is not limited by the strict rules as to the admissibility of evidence which prevail in suits between private parties.81 But the more liberal the practice

76 Atchison, T. & S. F. Ry. v. United States, 203 Fed. 56.

"Lehigh Valley Ry. v. United States, 204 Fed. 986.

78 Norfolk & Western Ry. v. United States, 195 Fed. 953.

79 Louisville & N. Ry. v. Interstate Commerce Commission, 184 Fed. 118, 195 Fed. 541; Lehigh Valley

Ry. v. United States, 204 Fed. 986.

so Illinois Central Ry. v. Interstate Commerce Commission, 206 U. S. 441, 466, 51 L. ed. 1128, 27 Sup. Ct. 700.

81 Interstate Commerce Commission v. Baird, 194 U. S. 25, 48 L. ed. 860, 24 Sup. Ct. 563.

as to the introduction of testimony, the more imperative it is that the essential rules of evidence by which these rights are asserted or defended should be preserved.82

Topic C. Procedure for Determining Validity of Commission Action

§ 1148. Temporary restraining orders.

Should any person affected by an order of the Commission be convinced that such order should be set aside, annulled or suspended, in whole or in part, he may invoke the jurisdiction of the district court by filing in the office of the clerk of that court a written petition setting forth briefly and succinctly the facts constituting the petitioner's cause of action, and specifying the relief sought. The pendency of such suit shall not of itself stay or suspend the operation of the order of the Commission, but the court may, in its discretion, restrain or suspend, in whole or in part, the operation of the Commission's order pending the final hearing and determination of the suit. It is clear that injunction orders may be issued upon application to the district courts in three forms: First, a temporary restraining order staying in whole or in part the operation of the order of the Commission for not more than sixty days, to be allowed by a majority of three judges; second, a preliminary injunction to restrain or suspend in whole or in part the operation of the Commission's order, pendente lite, to be allowed by a majority of three judges; third, in the nature of things, a perpetual injunction upon the entry of the final decree.83 As to the first of these forms of equitable relief, the Act provides that where irreparable damage would otherwise ensue to the petitioner, application may be made to the district court and shall be heard by three judges, at least one of whom shall be a circuit judge. If a majority of the three judges

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

83 United States v. B. & O. Ry., 225 U. S. 306, 56 L. ed. 1107, 32 Sup. Ct. 742.

concur, they may, on hearing, after not less than three days' notice to the Interstate Commerce Commission and the Attorney General, allow a temporary stay or suspension, in whole or in part, of the operation of the order of the Interstate Commerce Commission for not more than sixty days.

§ 1149. Injunction against enforcement.

No interlocutory injunction suspending or restraining the enforcement, operation, or execution of, or setting aside, in whole or in part, any order made or entered by the Interstate Commerce Commission shall be issued or granted by any district court of the United States, or by any judge thereof, or by any circuit judge acting as district judge, unless the application for the same shall be presented to a circuit or district judge, and shall be heard and determined by three judges, of whom at least one shall be a circuit judge, and unless a majority of said three judges shall concur in granting such application. When such application is presented to a judge, he shall immediately call two other judges to his assistance to hear and determine the application. This application shall not be heard or determined before at least five days' notice of the hearing has been given to the Interstate Commerce Commission, to the Attorney General of the United States, and to such other persons as may be defendants in the suit. The judges may, at the time of hearing an application for a temporary restraining order, upon a like finding, continue the temporary stay or suspension in whole or in part until decision upon the application.84 The hearing upon such application for an interlocutory injunction shall be given precedence and shall be in every way expedited

84 In interpreting almost identical language in the Act creating the Commerce Court, the Supreme Court held that the requirement as to a finding based upon evidence identified by reference thereto applied only to

the temporary restraining order and not to a preliminary injunction pendente lite. United States v. B. & O. Ry., 225 U. S. 306, 56 L. ed. 1100, 32 Sup. Ct. 817.