and be assigned for a hearing at the earliest practicable day after the expiration of the notice hereinbefore provided for. Upon the final hearing of any suit brought to suspend or set aside, in whole or in part, any order of the Commission, the same requirements as to judges and as to the expedition of the suit shall apply. In passing upon such petitions which include the report or opinion of the Commission, the court is limited to examining the report or opinion of the majority of the Commission, and the views of the minority are not open to consideration.8

§ 1150. Balance of equities.

85

In a suit in equity to enjoin the action of the Commission, the court starts with the presumption that the order is valid, and the burden of showing that the facts are such as to render the order invalid rests upon the carrier assailing it, and unless the case made on behalf of the carrier is a clear one the order ought to be upheld.86 In determining whether it should temporarily enjoin a proposed increase of interstate rates the court must take into account the balance of equities between the shippers and the carriers. If the balance of detriment or inconvenience in the event the temporary injunction is refused is against the shippers, then the injunction will be granted. But if, on the other hand, the balance of detriment or inconvenience is against the carrier, in the event the temporary injunction should be issued, then it should be refused.87 The Supreme Court of the United States will not on appeal reverse an order of preliminary injunction of an inferior Federal court to restrain an order of the Commission forbidding carriers to make certain allowances, except where there has been an abuse of discretion by the inferior court,

85 Atchison, T. & S. F. Ry. v. Interstate Commerce Commission, 188 Fed. 229; Southern Pacific Ry. v. Interstate Commerce Commission, 188 Fed. 241.

86 Mo., K. & T. Ry. v. Interstate

Commerce Commission, 164 Fed. 645.

87 Arlington Heights Fruit Co. v. So. Pac. Ry., 175 Fed. 141; Nashville Grain Exchange v. United States, 191 Fed. 37.

or where it plainly appears that the preliminary order was in effect a decision by the inferior court of the whole controversy on its merits, or when it is demonstrable that grave detriment to the public interest will result from a failure of the Supreme Court finally to dispose of the controversy without remanding the case. On appeal from the order of an inferior court enjoining an order of the Commission, the Supreme Court reviews the findings of the Commission.89

88

§ 1151. Appeal from the district court on petitions for injunctions.

An appeal may be taken direct to the Supreme Court of the United States from the order of the district court granting or denying, after notice and hearing, an interlocutory injunction in such case, if such appeal be taken within thirty days after the order in respect to which the complaint is made is granted or refused, and upon the final hearing of any suit brought to suspend or set aside, in whole or in part, any order of the Commission, the same requirements as to appeals shall apply. A final judgment or decree of the district court may be reviewed by the Supreme Court if appeal thereto be taken by an aggrieved party within sixty days after the entry of such final judgment or decree, and such appeals may be taken in like manner as appeals are taken under existing law in equity cases. And in such case the notice required shall be served upon the defendants in the case. It was formerly within the power of the Circuit Court to suspend its decree requiring a carrier to desist from violating the Act, pending an appeal from such decree, until a decision should be made by the appellate court. It was said that this power should

88 United States v. B. & O. Ry., 225 U. S. 306, 56 L. ed. 1100, 32 Sup. Ct. 817.

89 Interstate Commerce Commission v. D., L. & W. Ry., 216 U. S. 531, 30 Sup. Ct. 417; Interstate Commerce

Commission v. No. Pac. Ry., 216 U. S. 538, 30 Sup. Ct. 415; Kentucky Bridge Co. v. L. & N. Ry., 37 Fed. 567; Mo., K. & T. Ry. v. Interstate Commerce Commission, 164 Fed. 645.

always be exercised whenever irreparable injury may result by continuing the decree in effect as rendered.90 And this provision was said not to be inconsistent with the policy expressed in the Expediting Act.91

§ 1152. Sufficiency of averments.

If a petition is brought for the restraining or annulment of an order of the Commission, it must set forth facts which if true would sustain the petitioner's contention. This is particularly necessary in cases where it is claimed that the Commission's order is confiscatory. In such a case, a demurrer will be sustained where the bill merely charges in general terms that the rates prescribed are not reasonably compensatory and do not yield a reasonable profit, as it is the duty of the carriers, having, as they do, largely in their possession the means of information, to set out the revenue derived, the cost of service, the amount of revenue necessary for the maintenance of the petitioners as common carriers, to what extent such revenue would be affected by the rates prescribed in the order complained of, and other facts showing confiscation.92 So also general allegations in a bill attacking an order fixing maximum freight rates which state in substance the judgment of the pleader as to what the evidence before the Commission did not "tend to establish," are insufficient to justify a court in enjoining the enforcement of the order upon the ground that the Commission had either denied the hearing contemplated by the Act, or, by its arbitrary action, had been guilty of an abuse of power, nor is the allegation that losses in revenue will result sufficient to establish confiscation without any showing as to the value of the property employed, the expense of operation, or the return which will be permitted under the rates prescribed.93

90 Interstate Commerce Commission v. Louisville & N. R. R., 101 Fed. 146.

91 Interstate Commerce Commission v. Southern Pac. Co., 137 Fed. 606.

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

93 Louisville & Nashville Ry. v. Garrett, 231 U. S. 298, 58 L. ed. 229,

§ 1153. Necessary and proper parties.

Under the Interstate Commerce Act suits in the courts to enjoin, set aside, annul or suspend an order of the Commission may be maintained not only by those who were parties to the complaint before the Commission but by anyone who is affected by the Commission's order. Nor is it necessary that all the parties to the complaint should be joined. This arises from the fact that the petition in the courts is not an appeal or writ of error, but it is a plenary suit in equity and may be brought by one party without joining the other parties to the order.94 The determination of the question as to what parties may maintain such suits is left by the Act to the general rules and practices in equity, and under them any party whose rights or property are in danger of irreparable injury from an unauthorized order of the Commission may appeal to a Federal court of equity for relief.95 Hence when carriers are not made party defendants to a complaint before the Commission, but the order of the Commission reducing rates will inevitably require reductions by such carriers in large amounts from the fact that they are largely engaged in the transportation affected by such order, they have a sufficient interest to entitle them to join in a petition to the Federal court to enjoin said order. Likewise the courts may at their discretion permit the parties to any complaint before the Commission to intervene as defendants in a suit to enjoin an order of the Commission, where such intervention does not delay the progress of the suit.96

34 Sup. Ct. 48. So a rate on a particular product will not be set aside when the carrier offers no evidence as to its receipts or the value of its property affected by the order. Wood v. Vandalia Ry., 231 U. S. 1, 58 L. ed. 97, 32 Sup. Ct. 7, nor when the lower court ascertained the value by an unreliable method. Minnesota Rate Cases, 230 U. S. 352, 57 L. ed.

1511, 33 Sup. Ct. 729; Missouri Rate Cases, 230 U. S. 474, 57 L. ed. 1571, 30 Sup. Ct. 975.

94 Atlantic Coast Line v. Interstate Commerce Commission, 194 Fed. 449. 95 Peavey & Co. v. Union Pacific Ry., 176 Fed. 409.

96 Delaware, L. & W. Ry. v. Intestate Commerce Commission, 169 Fed. 894.

$1154. Venue of enforcement suits.

The District Court Jurisdiction Act of 1913 provides that the venue of any suit brought to enforce, suspend, or set aside, in whole or in part, any order of the Commission shall be in the judicial district wherein is the residence of the party or any of the parties upon whose petition the order was made, except that when the order does not relate to transportation or is not made upon the petition of any party the venue shall be in the district where the matter complained of in the petition before the Commission arises, and except that where the order does not relate either to transportation or to a matter so complained of before the Commission, the matter covered by the order shall be deemed to arise in the district where one of the petitioners in court has either its principal office or its principal operating office. Where one of two carriers which have established a joint rate is within the jurisdiction of the court, an order of the Commission affecting such rate may be enforced as against that carrier, although the other carrier is without the jurisdiction of the court, and cannot, on that account, be made a party.97

§ 1155. Introduction of new evidence.

Since the proceedings in equity either for restraining, annulling, or enforcing an order of the Commission are de novo, the parties are not restricted to the evidence upon which the Commission based its finding, but may introduce new evidence.98 The Supreme Court, however, has severely condemned the practice of willfully withholding essential evidence from the Commission and first introducing it in proceedings in court. "The Commission is an administrative board. . . . The theory of the Act evidently is, as shown by the provision that the findings of the Commission shall be regarded as prima facie evidence, that

97 Interstate Commerce Commission v. T. & P. Ry., 52 Fed. 187; affirmed, 57 Fed. 948, 6 C. C. A. 653.

98 Mo., K. & T. Ry. v. Interstate Commerce Commission, 164 Fed. 645.