of some roads to file copies of their embargoes with the Commission. There are no rules of the Commission requiring that embargoes be filed. This, of itself, might be taken as an indication that the Commission considers that the whole matter is still governed by the common law and that the filing of embargoes cannot be required under the existing provisions of the act.

Shippers have been subjected to many embargoes during the federal operation of the railroads. This was a condition necessarily incident to war commerce. But many of the hardships which embargoes cause the shipping public could be avoided if a supervision of embargoes were provided for which assured notice thereof being given the shipping public and which, in the absence of such notice, required the enforcement as substantive law of the carrier's duty to receive and transport.

Before there can be legislation regulating embargoes there should be substantive enactment of the duty to carry accompanied by such exceptions to that duty as would give rise to the embargoes that are to be regulated. The advisability of the amendment here suggested is thus made clear, it would seem.

Before leaving section 6, it might not be beyond the purview of these discussions to consider the desirability of further amending this section to remove doubt that may exist as to jurisdiction to award reparation in so-called "overcharge" cases. If the freight charges on a shipment are assessed on the basis of a class rate, for example, when in fact as is later discovered by the shipper a lower commodity rate was also applicable, the difference between the freight charges based upon the class rate, and the charges based upon the lower commodity rate are referred to, if the Commission finds that the commodity rate relied upon by the shipper is applicable, as "overcharges." There may be many other rate situations resulting in "overcharges." The example given is perhaps the simplest. Sometimes the Commission awards the "overcharges" as reparation and enters an order requiring their repayment as reparation and sometimes there is simply a statement in the report that the carriers may make refund of the "overcharges." There are other "overcharge cases" such as where the rates charged were not legally published. Such cases may be brought upon an alleged violation of section 6 and are not similar therefore to the "overcharge cases" here concerned.

If, in cases where the Commission does not make an order, but simply states that refund should be made, the carriers refuse, on application by the complainant, to comply, what recourse has the shipper? He may sue in the courts for money had- and received, but in such an action is the report of the Commission competent evidence? It would seem not. Of course, under section 16, there is a right of action created in the shipper's favor in the courts to sue on "an order for the payment of money." But where there is no order, this cause of action created by the act cannot be

availed of. If there is an order awarding the "overcharges" as reparation then such a suit would lie, and in a suit so based the findings of the Commission and its order become prima facie evidence of the facts therein stated, by the terms of the provisions of section 16. If the report could not be introduced in the trial of the case for money had and received and if the holding of the Commission on the application of the lower rate were held irrelevant evidence, then the question of which rate was, applicable would have to be decided de novo by the court, which, in turn, would lead to the court's encroachment on the admitted province of the Commission, in which field it has sole authority.

The answer to this uncertainty seems to be that the Commission should in all "overcharge" cases enter an order awarding reparation. There is some doubt in certain quarters, however, whether the Commission can ever enter a reparation order in any "overcharge" case. The line of argument is this: The Commission is empowered to award reparation and draw reparation orders only in cases where a violation of the act can be found on which to base the damages.

In an overcharge case the higher rate is published in accordance with all the requirements of the act. As a class rate it cannot be found unreasonable or otherwise unlawful. If the higher rate is, therefore, entirely lawful, how can the charges based on this higher rate be found to be in violation of the act? If they are not in violation of the act can reparation be awarded by the Commission? If not, then the Commission is without authority to enter an order in such "overcharge" case requiring the refund. to be made.

The lower rate is, however, also published in manner and form in all respects as required by the act and as a commodity rate it cannot be found unreasonably low or otherwise in violation of the act. If the lower rate. is, therefore, entirely lawful why should not the charges be assessed upon it? It certainly seems that this is what should be. But the act is silent on the matter!

There is no specific statement in the act where such a situation arises under tariffs duly published, and legally on file, that the lower rate shall be the lawful rate. No one will seriously contend that the shipper ought not enjoy the lower rate. If so, why should not section 6, paragraph 7, be amended and this uncertainty be dispelled by adding at the end thereof somewhat in these terms:

Provided, that transportation charges assessed upon rates not otherwise in violation of this act, which through error in tariff publication, oversight, improper interpretation of tariffs or otherwise are higher than other rates likewise not in violation of this act, shall be unlawful to the extent they exceed the charges based upon such lower rates, if it be found by the Commission that such lower rate properly applied.

All uncertainty would be removed by such an amendment. If there is any doubt as to the Commission's jurisdiction to make a reparation.

order requiring the refunding of overcharges, it would then be cleared.

away.

Another phase of the matter of "overcharges" is the question of awarding reparation for the misrouting of unrouted freight. Of course, if the shipper specifies a certain routing the carriers, under section 15, are bound to observe that routing and any departure therefrom is a violation of the act. If damages are sustained by reason of such violation, there can be no question as to the Commission's authority to award reparation. and draw an order thereon.

If, however, the shipment is not routed by the shipper and there are two possible routes, one lower rated than the other, is there any duty upon the carrier under the act to haul the shipment via the lower rated route? Certainly there is no specific statement in the act of any such duty. Yet the Commission is continually entertaining such cases and finding in them that the shipment was misrouted and that the higher rate applicable via the route of movement was unreasonable as applied to the particular shipment, to the extent it exceeded the rate applicable via the lower rated route.

The argument of those who are of the view that the Commission is without authority to grant reparation in such cases is this. If there is no duty specifically expressed in the act requiring a carrier receiving unrouted freight to haul same via the lowest rated route possible, then how can the Commission find that the shipment has been misrouted? The finding that a shipment has been misrouted cannot imply a violation of the act. If there is no violation of the act, the Commission cannot make a reparation order.

These misrouting cases are usually presented by the shippers on the sole contention that there were two or more routes available via one of which a lower rate applied than was charged via the route of movement : that the routing was not specified by the shipper and that he is entitled to the protection of the lower rate. The finding of the Commission usually is that the rate charged was accordingly unreasonable to the extent that it exceeded the rate via the lower rated route. This finding is therefore necessarily made on a record that contains not a word of proof going to the reasonableness per se of the rate charged for the haul via the route of movement other than such inference as might be drawn from the fact that via another route the rate applicable between the same points was less, which the Commission has unformly held when standing alone does not prove the unreasonableness per se of the rate via the higher rated route.

Of course, these misrouting cases are brought upon the same theory as other "overcharge" cases, viz., that somehow under the act a shipper is entitled to be charged the lowest rate provided in the tariffs. There is no express provision in the act to this effect and if the duty exists at all it must be derived by implication from some general provision. As to the

merits of the situation or that it should not be so, no one hardly will argue. Then why should the matter be left to implication? A matter so fundamental to the rights of shippers and the duties of carriers should be specifically legislated into the act. The reparation that is awarded in these cases is property. The right of a shipper to have reparation in a particular situation is a property right. Property rights are usually founded on specific provisions, strictly construed, rather than upon implication.

It would seem, therefore, that there might well be a further amendment to paragraph 7 of section 6 somewhat as follows:

Provided further, that where freight is tendered for shipment unrouted, and more than one route is available under the published tariffs duly on file, at rates one of which is lower than the others, it shall be the duty of the carrier receiving such shipment to forward same over such lower-rated route, and failing this to make refund of any charges assessed in excess of those that would have accrued had the shipment been so forwarded.

SECTION 7

See Appendix, Page 100, for text of both

the former and present Acts.

This is the continuous haul and break bulk section in which there is no change.

SECTION 8

See Appendix, Page 101, for text of both

the former and present Acts.

This section makes provision for the recovery in the courts of any damages suffered in consequence of any violation of the provisions of the act in which no change has been made.

SECTION 9

See Appendix, Page 101, for text of both

the former and present Acts.

This section provides that any person claiming to be damaged by reason of some alleged violation of the act may either make complaint to the Commission or file his suit in a United States Court. There has been no change made in this section.

The Supreme Court of the United States has recently decided Spiller vs. Atchison, Topeka & Santa Fe Ry. Co., 253 U. S. 117, and it may not be unprofitable to consider what change, if any, this decision has wrought in the procedure before the Commission in cases to recover damages.

The right to bring a suit for damages before the Commission is derived solely from Section 9 and, since this right is granted in the alternative with the right to prosecute such a suit in the federal courts, it is thought in some quarters that this concurrent authority of the Commission when exercised should necessarily be governed by the same rules of pro

cedure, in the main, that would govern, if the suit were prosecuted in the courts. And this view seems to be strengthened by the fact that paragraph 1 of section 17 provides in part:

The Commission may, from time to time, make or amend such general rules or orders as may be requisite for the order and regulation of proceedings before it, or before any division of the Commission, including forms of notices and the service thereof, which shall conform as nearly as may be, to those in use in the courts of the United States.

Damage cases before the Commission are to be tried under the same rules of evidence, "as nearly as may be," as would be applicable if the suit were being tried in a court of law, it would seem. Hearsay evidence when properly objected to would become incompetent to establish either the fact of damage or the right thereto. Likewise, these matters are to be established by the best evidence. Of course these views only have application to the trial of the matter of the right to damages and the amount thereof as distinguished from an investigation to determine what will be a reasonable or non-prejudicial rate for the future.

The other view for which there might be deemed to be some approval from certain expressions of the Supreme Court in the Spiller case, is that the procedure before the Commission in damage cases as well as in investigations to determine rates for the future, should be informal and free from technicalities. The court said:

In Interstate Com. Com. vs. Baird, 194 U. S., 25, 44, it was said: “The inquiry of a board of the character of the Interstate Commerce Commission should not be too narrowly constrained by technical rules as to the admissibility of proof. Its function is largely one of investigation and it should not be hampered in making inquiry pertaining to interstate commerce by those narrow rules which prevail in trials at common law where a strict correspondence is required between allegation and proof." In Interstate Com. Com. vs. Louis. & Nash. R. R., 227 U. S., 88, 93, the court recognized that "The commission is an administrative body and, even where it acts in a quasi-judicial capacity, is not limited by the strict rules, as to the admissibility of evidence, which prevail in suits between private parties."

A suit brought by a shipper before the Commission against a railroad to recover damages because of a violation of the act is as much a “suit between private parties" as a suit instituted by the same shipper in a court against the same railroad for damages to the particular shipment resulting from some negligent act of the railroad. The Spiller case was itself a "suit between private parties," and it is therefore difficult to follow the reasoning of the court in quoting from these cases to establish that in a "suit between private parties" the Commission is not limited by strict rules as to the admissibility of evidence.

The cases quoted from were rate investigations for the purpose of establishing rates or practices for the future as distinguished from damage or reparation cases. No one contends, it seems, that the Commission should be bound by strict rules of evidence in investigations designed to