not substitute its judgment for that of the Commission on the ground that there is no dispute as to the facts involved-since no such authority is conferred by the statute. Otherwise, in the words of the Supreme Court, "the Commission would become but a mere instrument for the purpose of taking testimony to be submitted to the courts for their ultimate action."

It is thus beyond the power of the Interstate Commerce Commission to regulate the policy of carriers in fixing rates and to compel them to substitute a lower rate for one that is just and reasonable, and an order to that effect will be set aside by the proper courts.39 And, before the amendment of 1910, it was held that the public preference for another route no shorter and no better than one existing was not sufficient to give the Commission power under the Act to fix a through route where no reasonable or satisfactory route existed.40

In the matter of orders based on administrative functions of the Commission, such for instance as orders regulating the dis

court below failed to pass upon because of the erroneous conception in which it indulged concerning its own powers."

39 Southern Pacific Company v. Interstate Commerce Commission, 219 U. S. 433, 55 L. Ed. 283, 31 Sup. Ct. 288, supra, where the court said::"In the argument at bar the railroad companies do not question that if a complaint is made to the Interstate Commerce Commission concerning the unreasonableness of a rate that body has the authority to examine the subject, and if it finds the rate complained of is in and of itself unreasonable, having regard to the service rendered, to order the desisting from charging such rate, and to fix in a new and reasonable rate, to be operative for a period of two years. The companies further do not deny that where the Commission exercises such authority, its finding is not subject to be reviewed by the court. (Interstate Commerce Commission v. Illinois Central Railroad Co., 215 U. S. 452, 54 L. Ed. 280, 30 Sup. Ct. 155. In other words, the argument on behalf of the railroads fully concedes that an order of the Commission is not open to attack in the courts so long as that body has kept within the powers conferred by the statute. * * * The insistence is that both in form and in substance the order of the Commission is void, because it manifests that that body did not merely exert the power conferred by law to correct an unjust and unreasonable rate, but that it made the order which is complained of upon the theory that the power was possessed to set aside a just and reasonable rate lawfully fixed by a railroad whenever the Commission deemed that it would be equitable to shippers in a particular district to put in force a reduced rate." The order of the Commission was set aside.

40 Interstate Commerce Commission v. Northern Pacific Railway Co., 216 U. S. 538, 54 L. Ed. 608, 30 Sup. Ct. 417, supra.

tribution of coal and fuel cars, the courts cannot interfere until after the Commission has acted and then merely to determine not their wisdom or expediency but only their legality within the limitations already set forth." And an action for reparation for wrongful charges requires as a precedent condition an investigation and order by the Commission, although as pointed out under section 16, the order permitting reparation and the order fixing new and proper rates for the future may or may not be a part of the same ruling."

41 Baltimore and Ohio Railroad Co. v. Pitcairn Coal Co., 215 U. S. 481, 54 L. Ed. 292, 30 Sup. Ct. 164. The court here said:-"When the situation is thus defined we see no escape from the conclusion that the grievances complained of were primarily within the administrative competency of the Interstate Commerce Commission and not subject to be judicially enforced, at least until that body, clothed by the statute with authority on the subject, had been afforded by a complaint made to it the opportunity to exert its administrative functions."

Morrisdale Coal Co. v. Pennsylvania Railroad Co., 230 U. S. 304, 57 L. Ed. 1494, 33 Sup. Ct. 938, where the court said :—“These rulings as to the validity of a particular practise and the facts that would warrant a departure from a proper rule actually in force, are sufficient to show that the question as to the reasonableness of a rule of car distribution is administrative in its character and calls for the exercise of the powers and discretion conferred by Congress upon the Commission. It was distinctly so ruled in the Pitcairn case (215 U. S. 481, 54 L. Ed. 292, 30 Sup. Ct. 164), and in I. C. C. v. Illinois Central, (215 U. S. 452, 54 L. Ed. 280, 30 Sup. Ct. 155). Those cases involved a consideration of the power of the Commission over the distribution of cars and held that the courts could not by mandamus compel it to make a rule, nor by injunction restrain the enforcement of one it had promulgated. If in those direct proceedings the courts could not pass upon the question of reasonableness of a method of allotting cars, neither can it do so as an incident to an action for damages.” See also United States v. Pacific and Arctic Railway and Navigation Co., 228 U. S. 87, 57 L. Ed. 742, 33 Sup. Ct. 433.

42 Robinson v. Baltimore and Ohio Railroad Co., 222 U. S. 506. The court, as to this, said:-"When the purpose of the Act and the means selected for the accomplishment of that purpose are understood, it is altogether plain that the Act contemplated that such an investigation and order by the designated tribunal, the Interstate Commerce Commission, should be a prerequisite to the right to seek reparation in the courts because of exactions under an established schedule alleged to be violative of the prescribed standards. And this is so, because the existence and exercise of a right to maintain an action of that character, in the absence of such an investigation and order, would be repugnant to the declared rule that a rate established in the mode prescribed should be deemed the legal rate and obligatory alike upon carrier and shipper until changed in the

When a carrier has been adjudged guilty of having violated certain provisions of the Act to Regulate Commerce the injunction issued by the court can relate only to the sections actually violated and should not command the carrier in general terms not to violate the Act in the future in any particular whatsoever."

manner provided, would be in derogation of the power expressly delegated to the Commission, and would be destructive of the uniformity and equality which the Act was designed to secure."

See also Bear Brothers Mercantile Co. v. Denver and Rio Grande Railroad Co., 233 U. S. 479, 58 L. Ed. 1055, 34 Sup. Ct. 641.

43 New York, New Haven and Hartford Railroad Co. v. Interstate Commerce Commission, 200 U. S. 361, 50 L. Ed. 515, 26 Sup. Ct. 272, where the court said :-"The contention therefore is that whenever a carrier has been adjudged to have violated the Act to Regulate Commerce in any particular it is the duty of the court, not only to enjoin the carrier from further like violations of the Act, but to command it in general terms not to violate the Act in the future in any particular. In other words, the proposition is that by the effect of a judgment against a carrier concerning a specific violation of the Act, the carrier ceases to be under the protection of the law of the land and must thereafter conduct all its business under the jeopardy of punishment for contempt for violating a general injunction. To state the proposition is, we think, to answer it. (Swift and Company v. United States, 196 U. S. 375, 49 L. Ed. 518, 25 Sup. Ct. 276.) The contention that the cited case is inapposite because it did not concern the Act to Regulate Commerce, but involved a violation of the Anti-Trust Act, we think is also answered by the mere statement of the proposition. The requirement of the Act to Regulate Commerce that a court shall enforce an observance of the statute against a carrier who has been adjudged to have violated its provisions, in no way gives countenance to the assumption that Congress intended that a court should issue an injunction of such a general character as would be violative of the most elementary principles of justice."

SECTION 16. ORDERS OF THE COMMISSION.

SEC. 16. (Amended March 2, 1889, June 29, Award of 1906, and June 18, 1910.) That if, after hearing Commission. on a complaint made as provided in section 13 of

damages by

this Act, the Commission shall determine that any party complainant is entitled to an award of damages under the provisions of this Act, for a violation thereof, the Commission shall make an order directing the carrier to pay to the complainant the sum to which he is entitled on or before a day named.

If a carrier does not comply with an order for the payment of money within the time limit in such order, the complainant, or any person for whose benefit such order was made, may file in the Circuit Court of the United States for the district in which he resides or in which is located the principal operating office of the carrier, or through which the road of the carrier runs, or in any state court of general jurisdiction having jurisdiction of the parties, a petition setting forth briefly the causes for which he claims damages, and the order of the Commission in the premises. Such suit in the Circuit Court of the United States shall proceed in all respects like other civil suits for damages, except that on the trial of such suit the findings and order of the Commission shall be prima facie evidence of the facts therein stated, and except that the petitioner shall not be liable for costs in the Circuit Court nor for costs at any subsequent stage of the proceedings unless they accrue upon his appeal. If the petitioner shall finally prevail he shall be allowed a reasonable attorney's fee, to be taxed and collected as a part of the costs of the suit. All complaints for the recovery of damages shall be filed with the Commission within two years from the time the cause

of action accrues, and not after, and a petition for the enforcement of an order for the payment of money shall be filed in the Circuit Court or state court within one year from the date of the order, and not after.

In such suits all parties in whose favor the Commission may have made an award for damages by a single order may be joined as plaintiffs, and all of the carriers parties to such order awarding such damages may be joined as defendants, and such suit may be maintained by such joint plaintiffs and against such joint defendants in any district where any one of such joint plaintiffs could maintain such suit against any one of such joint defendants; and service of process against any one of such defendants as may not be found in the district where the suit is brought may be made in any district where such defendant carrier has its principal operating office. In case of such joint suit the recovery, if any, may be by judgment in favor of any one of such plaintiffs, against the defendant found to be liable to such plaintiff.

Every order of the Commission shall be forthwith served upon the designated agent of the carrier in the city of Washington or in such other manner as may be provided by law.

Commission may suspend or

The Commission shall be authorized to suspend or modify its orders upon such notice and in such modify order. manner as it shall deem proper.

It shall be the duty of every common carrier, its agents and employees, to observe and comply with such orders so long as the same shall remain in effect.

Any carrier, any officer, representative, or agent of a carrier, or any receiver, trustee, lessee, or agent of either of them, who knowingly fails or neglects to obey any order made under the provisions of section 15 of this Act shall forfeit to the United States the sum of five thousand dollars for each offense. Every distinct violation shall be a separate offense, and in case of a continuing violation each day shall be deemed a separate offense.

Carriers, their agents

and employees,

must

with

ders.

comply such or

Punish ment by forfeiture for

refusal to obey

order of Com

mission under

section 15.