16 to correct abuses by a carrier in the conduct of its business. It can make no order or decree of its own, nor modify the order for the purpose of making it conform to the opinion of the court, in case that opinion should differ from the view taken by the Commission. 17 While it is true that in enforcement proceedings, the cause of action is examined de novo, and in a qualified sense is independent of the investigation by the Commission, the relief to be obtained must be confined to that included in the Commission's order. 18 Even though, upon the court's refusal to enforce an order, the Commission moved for a rehearing on the ground that its order was not intended to be as broad as indicated by its terms, yet the court held that it was confined to the order which was actually made and could not substitute for it another which the Commission might or should have made, or one which it intended, but failed to make. 19 But in passing upon an order issued by the Commission, the court is not confined to the grounds or reasons assigned by the Commission as the basis of its conclusion, but may, without going beyond the issue, reach a like or different conclusion upon the same or other grounds or reasons.20 Hence though the order may not be warranted by that section of the Act which the Commission relied upon, it may nevertheless be enforced because sustained by some other section of the Act.21 § 1162. Sufficiency of averments. In a suit in a Federal court for the enforcement of an order of the Commission or for damages growing out of a violation of the Act, the complainant, whether it be the 16 Farmers' Loan & Trust Co. v. No. Pac. Ry., 83 Fed. 249. 17 Interstate Commerce Commission v. L. & N. Ry., 73 Fed. 409. 18 Western New York & Pennsylvania Ry. v. Penn Refining Co., 137 Fed. 343, 70 C. C. A. 23. 19 Interstate Commerce Commission v. D., L. & W. Ry., 64 Fed. 723. 20 Interstate Commerce Commission v. Southern Pacific Ry., 132 Fed. 829. 21 Southern Pacific Ry. v. Interstate Commerce Commission, 200 U. S. 536, 50 L. ed. 585, 26 Sup. Ct. 330; Interstate Commerce Commission v. E. T., V. & G. Ry., 85 Fed. 107. Commission or any other party in interest, must show either a case of individual grievance or of public inconvenience resulting from the acts of the carrier in violation of the Act.22 In a suit to enforce an order of reparation, if the petition and the record show that the cause of action before the court is the same as that before the Commission, it is not necessary that the order of the Commission, when offered in evidence, should also state the cause of action. 23 If the petition is based upon some breach of duty by the carrier, the breach must be specified, for the court will otherwise presume that the carrier has complied with the law. Hence in a suit for damages because of an alleged unjust or discriminatory charge, where there was no averment that the carrier had failed to file or post its tariff, the court is bound to presume that the tariff has been filed and that the charge complained of was made thereunder, and hence can grant no relief without prior action by the Commission.24 Furthermore if the relief sought depends upon prior action by the Commission, such action must appear in the petition. Hence in a suit to recover damages for the exaction of excessive and unreasonable rates, the declaration must allege specifically that the rates complained of have been declared excessive or unreasonable by the Interstate Commerce Commission, since under the Act as amended June 29, 1906, recovery cannot be had in the courts until the Commission has passed upon the rates, and an allegation merely that 'plaintiffs have been obliged to pay excessive and unreasonable rates" is not sufficient.25 It has even been held that the Commission's order must be produced.2 26 The requirement of the Act that the petitioner shall set forth briefly the causes for which he claims damages is not 25 Meeker v. Lehigh Valley Ry., 162 Fed. 354. 22 Interstate Commerce Commission v. B. & O. Ry., 43 Fed. 37. 23 Chicago, B. & Q. Ry. v. Feintuch, 191 Fed. 482. 24 Clement v. L. & N. Ry., 153 Fed. 979. 26 Geraty v. A. C. L. Ry., 211 Fed. 227. satisfied by setting forth the proceedings of the Commission in which the causes of the complaint appear.27 But even if the petition avers that the Commission has declared the rate unreasonable, suit will fail if it does not also aver that the complainant has paid the rate so condemned. 28 These questions as to the contents of the bill will arise whether suit is brought in a State or a Federal court. 29 In brief the requirement is that the bill shall state a cause of action. This requirement is satisfied in the case of joint carriers by alleging the disobedience of any one of the parties to the joint arrangement within the jurisdiction of the court, since the disobedience of one showed the disobedience of all.30 The averment of service of the Commission's order must also be unequivocal, since the defendant is entitled to an allegation of service and the manner thereof in terms so clear as to permit an issue of fact. Hence it is not enough to aver that "thereafter said Commission, agreeable to the provisions of law in that regard, duly caused an authenticated copy of its said report, together with order aforesaid, to be delivered to the said defendant." 31 § 1163. Recovery on a reparation order of the Commission. The Act authorizes the Commission, when it finds the complainant entitled to an award of damages, to make an order directing the carrier to pay to the complainant on or before a day named the sum to which the Commission finds him entitled. But in case the order is not obeyed, the Commission is without power to enforce it. Recourse must be had to the courts. The Act, trusting to the selfinterest of the parties concerned, does not authorize the 27 Baer Bros. Mercantile Co. v. D. & R. G. Ry., 200 Fed. 614. 28 Darnell-Taenzer Lumber Co. v. So. Pac. Ry., 190 Fed. 659. 29 Darnell v. Illinois Central Ry., 225 U. S. 243, 56 L. ed. 1072, 32 Sup. Ct. 760; Lilly Co. v. No. Pac. Ry., 117 30 Interstate Commerce Commission v. W. N. Y. & P. Ry., 82 Fed. 192. 31 Baer Bros. Mercantile Co. v. D. & R. G. Ry., 200 Fed. 614. Commission to appear in such proceedings, but provides that they may be brought by the complainant or any person for whose benefit the order was made. While enforcement suits may be brought by persons who did not appear before the Commission, 32 the better practice is for all interested shippers to file intervening petitions and obtain individual orders for reparation, upon which they may proceed in court. 33 A suit in the district court under section 16 of the Act to enforce an award of reparation is one the issues of which require a trial by jury and can only be entertained by the court when sitting as a court of law.34 Such an action will lie only where the carrier has failed to comply with the Commission's order for the payment of money within the time therein specified.35 Since the award of the Commission, if lawfully made and supported by sufficient evidence, gives rise to a vested right analogous to a judgment, it may be sued upon in either State or Federal courts and this is expressly authorized by 16 of the Act.36 But while an award of the Commission is analogous to a judgment, it is not a judgment in the sense that it concludes the enforcement of the claim upon which it rests in a court otherwise having jurisdiction of the cause of action. The award is merely prima facie evidence of the facts contained therein in an action brought on it in a State or Federal court; and when so introduced in evidence it is open to attack and may be entirely discredited.37 While the finding of the Commission may establish the fact that there has been a violation of the Act, it is not decisive of the question of liability for damages either prima facie or otherwise.38 In a suit to recover 32 Independent Ref. Ass'n v. W. N. Y. & P. Ry., 6 I. C. C. Rep. 378. 33 Cattle Raisers' Ass'n v. C., B. & Q. Ry., 10 I. C. C. Rep. 83. 34 Interstate Commerce Commission v. Western New York & P. Ry., 82 Fed. 192. 35 Western New York & P. R. Co. v. Penn Refining Co., 137 Fed. Rep. 343, 354, 70 C. C. A. 23. 36 Darnell v. Ill. Cent. Ry., 225 U. S. 243, 56 L. ed. 1072, 32 Sup. Ct. 760. 37 Clark Bros. Coal Mining Co. v. Penn. Ry., 88 Atl. (Pa.) 754. 38 Lehigh Valley Ry. v. Meeker, 211 Fed. 785. on an award of reparation by the Commission, recovery was denied on the ground that the report of the Commission did not contain findings of fact sufficient to constitute a prima facie case of damage to the plaintiff.39 The order must not only be a lawful order one within the authority of the Commission-but the facts found must warrant the reparation which was awarded.40 The suit for the recovery of the money awarded offers an opportunity for a judicial determination of these questions, for it is the function of the court not simply to execute the order of the Commission, but to afford a judicial inquiry surrounded by all the proper judicial safeguards as to whether the order of the Commission should have been made.41 While the action of the court is in a sense independent of the investigation by the Commission, the relief to be obtained, aside from interest and costs, must be confined to such reparation as was considered by the Commission and included in its order. 42 § 1164. Findings of the Commission as evidence. Section 16 of the Act provides that in all suits on an award of damages by the Commission, "the findings and order of the Commission shall be prima facie evidence of the facts therein stated." When the order of the Commission is not for the payment of money, the Act is silent as to the weight to be given to its findings. But doubtless the courts will follow the same rule. The respect with which the courts have been in the habit of showing to the findings of the Commission as to matters which are peculiarly within its province is thus made a legal obligation. It should be noted that this provision does not make the 39 Lehigh Valley Ry. v. Clark, 207 Fed. 717 (C. C. A.). 40 Western N. Y. & P. Ry. v. Penn Refining Co., 137 Fed. 343, 70 C. C. A. 23. 41 Interstate Commerce Commission. v. A., T. & S. F. Ry., 50 Fed. 295; Interstate Commerce Commission v. C., P. & V. Ry., 124 Fed. 630; Baer Brothers' Mercantile Co. v. D. & R. G. Ry., 200 Fed. 614. 42 Western N. Y. & P. Ry. v. Penn Refining Co., 137 Fed. 343, 70 C. C. A. 23. |