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RULES OF PRACTICE BEFORE THE COMMISSION

No. 6.

FORM OF ORIGINAL COMPLAINT IN REPARATION CASES AGAINST THE

AGENT APPOINTED BY THE PRESIDENT.

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FOR
ADMINISTRA-

RATION CASES

The complaint of the above-named complainant- respectfully shows:

I. That (complainant or complainants should here state nature and place of business, also whether a corporation, firm, or partnership, and if a firm or partnership, the individual names of the partners composing the same.]

II. That defendant, Walker D. Hines, Director General of Railroads, as Agent, is an officer of the United States designated by the President pursuant to the provisions of section 206 of the transportation act, 1920; that the railroads and systems of transportation over whose lines or routes the rates (fares, charges, classifications, regulations, or practices] complained of herein applied, and which during federal control were operated by the Director General of Railroads, are as follows: (Here specify the carriers whose railroads or systems of transportation were

under federal control and over which the rates, fares, charges, classifications, regulaNAL COMPLAINT tions, or practices applied, and against which such complaint would have been brought

RAILROAD if such railroad or system had not been under federal control at the time the matter comTION IN REPA-plained of took place.)

III. That (state in this and subsequent paragraphs to be numbered IV, V, etc., the matter or matters intended to be complained of, naming every rate, fare, charge, classification, regulation, or practice the lawfulness of which is challenged, and also, if practicable, each point of origin and point of destination between which the rates, etc., complained of were applied. Where it is impracticable to designate each point, defined territorial or rate groups and typical points should be designated. Whenever practicable tariff references should be given. See rule III.

Where unjust discrimination or undue prejudice is charged, the facts constituting the basis of the charge should be clearly stated; that is, if the unlawful discrimination was under section 2, the person or persons claimed to have been favored and the person or persons claimed to have been injured should be named, and the kind of service and kind of traffic, together with the claimed similarity of circumstances and conditions of transportation, should be set forth. (See rule III (1).) If the unlawful discrimination was under section 3, the particular person, company, firm, corporation, locality, or traffic claimed to have been accorded undue or unreasonable preference or advantage, or subjected to undue or unreasonable prejudice or disadvantage, should be stated. See rule III (m).]

X. That by reason of the facts stated in the foregoing paragraphs complainant- has/have been subjected to the payment of rates [fares or charges) for transportation which were (1) unjust and unreasonable in violation of section 10 of the federal control act; (2) unjust and unreasonable in violation of section 1 of the interstate commerce act, and /or (3) unjustly discriminatory in violation of section 2, and /or (4) unduly preferential or prejudicial in violation of section 3. (Use allegation (1) and one or more of the others according to the facts intended to be charged.) RULES OF PRACTICE BEFORE THE COMMISSION

Wherefore complainant, pray- that defendant may be required to answer the charges herein; that after due hearing and investigation an order be made commanding said defendant to pay to complainant- by way of reparation for the unlawful charges hereinbefore alleged the sum of

or such other sum as, in view of the evidence to be adduced herein, the Commission shall determine

that complainant- is/are entitled to as an award of damages under the provisions FOR MOR ORIGT of said acts for violations thereof, and that such other and further order or orders AGAINST AGENT be made as the Commission may consider proper in the premises. ADMINISTRADated at

19%

FOR RAILROAD
TION IN REPA-
RATION CASES

(Con.)

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(Complainant's signature.)

(Office and P. O. address.)

(Attorney's signature.]

{Office and P. O. address.)

SHORTENED
PROCEDURE OF
FORMAL
COMPLAINTS

SHORTENED PROCEDURE IN FORMAL CASES

(Adopted January 5, 1923.) The shortened mode of procedure was inaugurated for the benefit of the parties and of the Commission primarily to lessen the time consumed in hearing, considering and disposing of certain formal complaints under the method of procedure theretofore employed and to reduce the expense in handling them.

Formal complaints which appear from an examination to be susceptible of disposition under the shortened procedure are selected for determination under this plan, subject, however, to the consent of the parties that they shall be so handled. Since the shortened procedure has been inaugurated cases of only the simpler issues have been chosen for disposition under it. After the complaints have been selected as above indicated, the parties are requested to state whether or not they desire to have the cases determined under that mode of procedure. Requests by parties at the time complaints are filed, or at any time before hearing is had, to have cases determined thereunder, will be granted, whenever practicable to do so.

1. As soon as practicable after the complaint has been served upon the defendants in accordance with the rules of practice the complainant, or complainarts, will be asked to submit a memorandum of facts and argument within 30 days. Such memorandum must be accompanied by copies in sufficient number to enable the Commission to serve one upon each defendant and retain three. At the time that complainant is asked to submit its memorandum, defendants will be requested to advise complainant and the Commission whether or not they are willing to have the case handled under the shortened procedure. It is important that the defendants indicate within 15 days whether they consent to the case being handled under the shortened procedure or desire that oral hearing be had.

2. When all defendants have signified willingness to handle the case under the shortened procedure, a copy of complainant's memorandum of facts and argument will be served by the Commission upon each of them. At the same time the defendants will be asked to file with the Commission within 30 days three copies of their reply memorandum of facts and argument and also to serve copies of such memorandum upon complainant and interveners.

3. Upon the filing with the Commission of defendant's reply memorandum, complainant will be notified to submit a memorandum in rebuttal, if it so desires. Three copies of this memorandum should be filed with the Commission within 15 days and copies should be served by complainant upon defendants. This memorandum should be confined strictly to rebuttal of the facts and argument in defendants' memorandum; that is, it should be in opposition only to the facts and argument in defendants' memorandum.

4. The memoranda of facts and argument of the parties should contain evidence similar to that which would be submitted were the case orally heard and such argument as ordinarily would be submitted on brief. In order that there may be a complete record, all pertinent data should be fully set forth. The appendix hereto illustrates, in a general way, what are considered pertinent data.

5. The facts stated in the memoranda must be sworn to by persons having knowledge thereof.

6. If there is more than one complainant or defendant, à joint memorandum on behalf of each side is preferable to separate memoranda.

7. Upon application, and for good cause shown, extensions of time within which to file memoranda will be granted.

8. When all memoranda have been filed the case will be assigned to an examiner to propose a report. This proposed report will be served upon the parties in the usual manner.

9. An oral hearing will be granted, either upon the complaint as a whole or upon certain features of it, at the request of any party to the case at any stage of the proceeding prior to the service of the examiner's proposed report.

RULES OF PRACTICE BEFORE THE COMMISSION

SHORTENED
PROCEDURE

(Con.)

10. After service of the examiner's proposed report, the procedure is the same as if the case had been orally heard.

11. Circumstances not specifically covered by the above instructions will be handled in such manner as to meet the needs of the situation.

The list below illustrates, in a general way, what the Interstate Commerce Commission considered pertinent data where relevant.

1. Whether complainant is an individual, partnership, association, or corporation. If an individual, his or her residence; if a partnership, names of the partners. Complainant's business and principal place thereof.

2. Description of commodity (where classification rating is involved, form, packing, liability to damage and to contaminate other freight value), and date, origin, destinatior, weight, consignor, and consignee of the shipments.

3. Rate charged, and minimum weight and any reconsignment or transit arrangements applicable, with tariff authority therefor; charges collected; number of cars involved and weights of the contents.

4. Route of movement of each shipment; routing instructions and by whom given; whether rate was inserted in bill of lading.

5. Date of delivery or tender of delivery of each shipment, when question of statute of limitations is involved.

6. Where case has been filed previously on the informal docket, papers therein should be stipulated into the record.

7. Distances, and how computed. If more than one route exists between the points involved, short-line, average, and long-line distances.

8. History of rate.

9. Rate comparisons, together with transportation conditions, and movements under such rates, etc.

10. Right of complainant to any refund which may be ordered. Whether goods were sold f. o. b. origin, destination, or elsewhere, by whom the charges were paid in the first instance, and how complainant was damaged.

11. Exact relief sought.

12. Facts and contentions to justify existence of lower rates between same points in opposite directions.

13. Where unjust discrimination or undue prejudice or preference is alleged—whether complainant, his locality, or traffic is discriminated against or prejudiced. How complainant was damaged by such discrimination.

14. Where Fourth Section departures exist, justification by defendants for such departures.

In further explanation of the so called “Shortened Procedure”, the following statement has been made by the Commission:

No fixed rules have been adopted by the Commission in connection with this new practice, nor has it been thought necessary to apply any fixed rules in connection with the cases now subject to this method by consent of the parties. Individual instances require individual treatment. The administration of the new practice has been actuated by the thought that its success will be advanced by handling each step of each case as common sense requires.

In the cases thus far handled the following successive steps have been or are being taken:

First, complainant is asked to submit a memorandum of fact and argument, setting forth such evidence as would be introduced were the case orally heard and such basic argument as would ordinarily go into his brief. Sufficient copies of this memorandum should be furnished for service upon each carrier named as defendant, and upon interveners if there be any; also three copies for the use of the Commission. Ordinarily 30 days should be sufficient time for complainant to submit his memorandum.

Upon receipt of complainant's memorandum copies are transmitted to the defendants and interveners who are generally allowed 30 days within which to submit reply memorandum of fact and argument. Each defnadent is also asked immediately to file formal answer to the complaint in order that issue may be joined in the event it is necessary to set the case for hearing; and is requested to file its reply memorandum with the Commission and serve copies upon each complainant and intervener within the time alloted. Three copies of this memorandum are likewise needed for the use of the Commission.

Within 15 days from the date on which reply memorandum is filed, each complainant may, if he wishes, submit rebuttal memorandum, which memorandum should be confined to rebuttal.

The case is then assigned to an examiner, who studies these memoranda as he would a formal record and prepares and has issued a proposed report. At any time up to the date when such report is issued, any party to the case may request the regular formal hearing either upon the whole complaint or upon certain features of it.

After the Examiner's proposed report is served, the procedure is the same as if the case had been formally heard; that is, printed exceptions may be filed as provided by paragraphs 4 and 5 of Rule XIV of the Commission's Rules of Practice.

Oral argument may be had upon reasonable request therefor, and the decision of the Division of the Commission is subject to the same rights to petition for rehearing as would be the case if the issues were decided upon a record made at a formal hearing.

Where there are several complainants, or defendants, it is preferred that as far as practicable joint memoranda in lieu of separate papers be submitted on behalf of each side.

EXPLANATORY
STATEMENT

RULES OF PRACTICE BEFORE THE COMMISSION

Modified Procedure Before Interstate Commerce Commission.

Parties in Docket No.....

The shortened procedure has been applied only to the class of relatively simple cases in which the issues can generally be stated in brief memorandums and in which the oral hearing is not indispensable.

The "modified procedure” is directed toward another class of cases in which it is assumed that an oral hearing is necessary.

The following is the order of procedure:

1. A complainant will file with the Commission and serve upon counsel for the defendants and upon counsel for any interveners a complete statement of the facts upon which reliance is had to support the allegations of the complaint, together with copies of all exhibits. At the earliest practicable date after the case is at issue, defendants and interveners shall furnish to the other parties and to the Commission the names of counsel who will be in charge of the defense and the intervention and to whom copies of the statements and exhibits should be transmitted. Complainant should be prepared to furnish two copies of its statement of fact and exhibits to each of the other parties who expect to participate actively in the case and two copies to the Commission.

2. Within thirty days after filing of complainant's statement of facts and exhibits, the defendant or defendants will likewise file with the Commission and serve upon the complainant and intervener two copies of their statement of facts and exhibits.

3. Any one entitled under the act to complain to the Commission may petition to intervene on allegations reasonably pertinent to the issues and which do not unduly broaden them. It is desirable that the petition be filed at as early a date as is practicable after the complainant is at issue and that its filing should not await the oral hearing, if had.

4. The statements of fact should be in narrative form and be a composite of the testimony of all of the witnesses who would be called by the parties if oral hearing were had as to all of the facts.

5. When all the memoranda of fact and exhibits have been filed, an examiner will prepare a memorandum enumerating (a) the points upon which the parties are agreed; (b) the points regarding which they agree only in part; and (c) points regarding which they are not agreed, copies of which memorandum will be mailed to the parties.

6. If there is agreement as to all of the facts, oral hearing may be waived. In such event the parties should notify the Commission within five days from the service of the examiner's memorandum that oral hearing may be dispensed with. Within thirty days from the date of such notification a written argument upon the facts may be filed. Thereafter the procedure will in all respects be the same as if the case had been orally heard.

7. Immediately after the case is formally opened for hearing, the examiner will informally direct the parties' attention to the points regarding which they have agreed only in part and points regarding which they are not agreed, with a view to having them compose their differences in whole or in part and stipulate into the record an agreed statement of all of the facts or leave for oral hearing as few disputed questions as possible. To make them a part of the record and to obviate any misunderstanding, the examiner, at the conclusion of the informal discussion, will request the parties to state whether or not they will stipulate into the record as a part thereof all of the statements of fact, exhibits and facts which have been agreed upon at the informal discussion.

8. The case will then proceed to hearing solely upon these points concerning which agreement has not been reached.

9. To avoid delay in the service of a proposed report by the examiner, it is suggested that wherever possible and practicable the parties should be prepared at the conclusion of the oral hearing to orally argue the case before the examiner and should waive filing of briefs.

All parties who have had experience in rate cases know that many pages of transcript are not helpful; and they cost money. Large numbers of exhibits are literally thrown into the record without opportunity for previous study and with the necessary consequence of requests for continuance in the hearing. Cross-examination of witnesses is frequetly wasteful and not always conducive to a better understanding of the issues. Unwieldy records are a burden to counsel when they prepare briefs, and they are likewise adding to the burdens of our examiners and the members of the Commission. The opportunity to study carefully thought out and supported issues in advance of the hearing, such as an exchange of memorandums and exhibits will make possible, will tend to reduce materially the size of the record and facilitate orderly presentation and full understanding on the part of all concerned.

I. C. C. FOURTH SECTION ORDERS

I. C. C. FOURTH SECTION ORDERS

The Fourth Section of the Interstate Commerce Act (see page 287) is commonly known as the Long and Short Haul provision of the act. Under this section a common carrier is not allowed to charge more for a shorter than for a longer haul over the same route, except by permission of the Interstate Commerce Commission; but, as is well known, many rates are in effect which violate the long and short haul principle. The Interstate Commerce Commission, however, in order to afford the carriers essential relief, has provided rules and regulations to be observed by the carriers in connection with such violations, the principal rule so established being Rule 77 of the Tariff Rules of the Commission.

In addition to the Tariff Rules of the Commission, conference rulings have been promulgated by the Commission indicating their attitude as to Fourth Section violations, and Special Fourth Section orders setting forth further regulations to be observed by the carriers. The following are some of the important Fourth Section orders issued by the Commission:

FOURTH SECTION ORDER No. 5

INTERSTATE COMMERCE COMMISSION.

ORDER. At a General Session of the INTERSTATE COMMERCE COMMISSION, held at its office in Washington, D. C.,

on the 20th day of March, A. D. 1911.

Present:

JUDSON C. CLEMENTS,
CHARLES A. PROUTY,
FRANKLIN K. LANE,
EDGAR E. CLARK,

JAMES S. HARLAN,
CHARLES C. McCHORD,
BALTHASAR H. MEYER,

Commissioners.

Commissioners.

IN THE MATTER OF APPLICATION FOR RELIEF UNDER THE FOURTH SECTION

OF THE ACT OF JUNE 18, 1910.

Many of the applications filed by carriers for relief under the Fourth Section with respect to certain practices now in existence that result in transportation charges from and to more distant points that are lower than the charges from or to intermediate points, relate to the absorption of switching charges at competitive stations and not at noncompetitive stations that are intermediate thereto.

The practice of absorbing switching charges from competitive and not from noncompetitive stations is a very general one, from which much benefit and little complaint results; therefore

It is ordered, That all carriers that may desire to continue or to establish rules for the absorption of switching charges be, and they are hereby, authorized to continue this practice for the present by the publication, filing, and posting of schedules in the manner and form as prescribed by law and by the Commission's regulations.

It is further ordered, That tariffs containing these rules need contain no reference to this order.

The Commission does not hereby approve any rules that may be filed under this permission, all such rules being subject to complaint, investigation, and correction if they conflict with any other provision of the act.

A true copy:

EDW. A. MOSELEY,

Secretary

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