CHAPTER XII

INTERSTATE COMMERCE COMMISSION

The Interstate Commerce Commission was created by Congress in the Act to Regulate Commerce approved on the fourth of February, 1887. It is composed of seven commissioners appointed by the president with the approval of the Senate at an annual salary of $10,000 each. Their terms of office were originally for two, three, four, five and six years dating from the first of January, 1887, but the terms of their successors were later made six years for each, and later still, seven years. Any commissioner may be removed by the president for inefficiency, neglect of duty or malfeasance in office. No person in the employ of or holding any official relation to a common carrier coming within the provisions of the act, or owning any stock or bonds of such common carrier, or otherwise pecuniarily interested, is eligible to the office of commissioner. The commissioners cannot engage in any other employment, business or vocation while in office, and no more than four of them can be appointed from the same political party.

The commission is a body corporate with power to sue and be sued. It has no judicial powers and is not a court, though it exercises quasi-judicial functions. Its functions are, however, more properly those of referees or special commissioners, and its duty is to enforce the provisions of the Act to Regulate Commerce as amended and to investigate abuses and to call upon the courts to suppress them whenever necessary. Section 12 of the act defines the scope and method of procedure of the commission as follows:

That the Commission hereby created shall have authority to inquire into the management of the business of all common carriers subject to the provisions of the act, and shall keep itself informed as to the manner and method in which the same is conducted, and shall have the right to obtain

from such common carriers full and complete information necessary to enable the Commission to perform the duties and carry out the objects for which it was created; and the Commission is hereby authorized and required to execute and enforce the provisions of this act; and, upon the request of the Commission, it shall be the duty of any district attorney of the United States to whom the Commission may apply to institute in the proper court and to prosecute under the direction of the Attorney-General of the United States all necessary proceedings for the enforcement of the provisions of this act and for the punishment of all violations thereof, and the costs and expenses of such prosecution shall be paid out of the appropriation for the expenses of the courts of the United States.

And for the purposes of this act the Commission shall have power to require, by subpoena, the attendance and testimony of witnesses and the production of all books, papers, tariffs, contracts, agreements and documents relating to any matter under investigation. Such attendance of witnesses, and the production of such documentary evidence, may be required from any place in the United States, at any designated place of hearing. And in case of disobedience to a subpoena the Commission, or any party to a proceeding before the Commission, may invoke the aid of any court of the United States in requiring the attendance and testimony of witnesses and the production of books, papers, and documents under the provisions of this section. And any of the circuit courts (now district) of the United States within the jurisdiction of which such inquiry is carried on, may, in case of contumacy or refusal to obey a subpœna issued to any common carrier subject to the provisions of this act, or other person, issue an order requiring such common carrier or other person to appear before said Commissioner (and produce books and papers if so ordered) and give evidence touching the matter in question; and any failure to obey such order of the court may be punished by such court as a contempt thereof. The claim that any such testimony or evidence may tend to criminate the person giving such evidence shall not excuse such witness from testifying; but such evidence or testimony shall not be used against such person on the trial of any criminal proceeding.

The testimony of any witness may be taken, at the instance of a party, in any proceeding or investigation pending before the Commission, by deposition at any time after a cause or proceeding is at issue on petition and answer. The Commission may also order testimony to be taken by deposition in any proceeding or investigation pending before it, at any stage of such proceeding or investigation. Such deposition may be taken before any judge of any court of the United States, or any commissioner of a (circuit) or any clerk of a district or (circuit) court, or any chancellor, justice or judge of a supreme or superior court, mayor or chief magistrate of a city, judge of a county court, or court of common pleas of any of the United States, or any notary public, not being of counsel or attorney to either of the parties, nor interested in the event of the proceeding or in

vestigation. Reasonable notice must first be given in writing by the party or his attorney proposing to take such deposition to the opposite party or his attorney of record, as either may be nearest, which notice shall state the name of the witness and the time and place of the taking of his deposition. Any person may be compelled to appear and depose, and to produce documentary evidence, in the same manner as witnesses may be compelled to appear and testify and produce documentary evidence before the Commission as hereinbefore provided. Every person deposing as herein provided shall be cautioned and sworn (or affirm, if he so request) to testify the whole truth, and shall be carefully examined. . . . If a witness whose testimony may be desired to be taken by deposition be in a foreign country, the deposition may be taken before an officer or person designated by the Commission, or agreed upon by the parties by stipulation in writing to be filed with the Commission. All depositions must be promptly filed with the Commission.

Complaints may be carried to the commission by any person, firm, corporation, company or association, any mercantile, agricultural or manufacturing society or organization, or any body politic or municipal organization, or any common carrier who may have knowledge that a common carrier is doing or omitting to do what is prohibited or what is required by the act. Complaints are made in the form of petition stating the facts briefly. This petition or a copy is sent by the commission to the common carrier complained of which is called upon to answer within a reasonable time specified by the commission. If the common carrier in the meantime makes reparation for the alleged injury it is at once relieved from liability but to the complainant only for the particular violation of law complained of. If the complaint is not satisfied within the time specified or there appears to be reason to investigate the complaint the commission must make such investigation. An investigation of this nature includes any complaint forwarded by the railroad commissioner of any State or Territory. The Interstate Commerce Commission does not, however, have to wait for a motion to investigate. It may investigate on its own initiative, and make and enforce any order in a case except where money payments are involved. No complaint can be dismissed because there is no direct damage to the complaining party.

The commission makes reports of all its investigations in writing including its decisions, orders and requirements. If damages are awarded, these reports include the findings of fact in which the award is made. The reports are published annually for general distribution and reference.

The Commission can determine and prescribe just and reasonable rates and classifications to be observed as maximum charges collected by any railroad, telegraph or telephone company, and can decide what rates are unjust, unreasonable or unjustly discriminatory, preferential or prejudicial to the provisions of the act. The orders of the Commission are not effective within less than thirty days from their issuance, and must not remain in force more than two years. The apparent purpose of this provision is to provide for a rehearing based on changes in conditions through the lapse of time. New rates or schedules may be investigated, and must not be put in effect while such investigation is pending. The burden of proof as to the reasonableness of the new or increased rates rests on the common carrier. Through routes and joint rates and classifications may be made by the commission whenever the carriers have failed to make them for themselves. The commission cannot act, however, in relation to street railway lines which do not carry freight nor in relation to carriers whose transportations are wholly by water.

It is unlawful for any person to give or receive information relative to a rival's shipments provided "that nothing in this Act shall be construed to prevent the giving of such information in response to any legal process issued under the authority of any state or Federal court, or to any officer or agent of the Government of the United States, or of any State or Territory," etc., etc. A violation of this provision is a misdemeanor and is punishable by a fine not exceeding $1,000.

In regard to the enforcement of its orders the Commission may apply in a summary way to the United States District Court for the district in which the offender lives or does business, for a hearing; and so also may a complainant

against a common carrier bring suit in a District Court to recover damages for the latter's failure to obey an order of the Commission. Such actions proceed as other actions except that on the trial the findings and order of the Commission are prima facie evidence of the facts stated in them. At no stage in the proceeding is the petitioner liable for costs unless they accrue on appeal. All complaints for the recovery of damages must be filed with the Commission within two years from the time the cause of action accrues. A petition for the enforcement of an order for the payment of money must be filed in the District Court or state court within a year from the date of the order. Every order of the Commission is served upon the designated agent of the common carrier concerned in the City of Washington. Every distinct violation of an order is regarded as a separate offence, and so also is each day's violation of a continued offence regarded as separate. For each offence the forfeiture of $5,000 may be exacted.

The enforcement of the Commission's orders other than for the payment of money lies in the power of the Commerce Court. If that court, after a hearing, determines that the order was regularly made and duly served, and that the carrier has disobeyed it, it may require obedience by a writ of injunction or other process, mandatory or otherwise, to restrain the carrier and its agents. The proceedings in this connection are provided for as follows:

That suits to enjoin, set aside, annul or suspend any order of the Interstate Commerce Commission shall be brought in the commerce court against the United States. The pendency of such suit shall not of itself stay or suspend the operation of the order of the Interstate Commerce Commission; but the commerce court, in its discretion, may restrain or suspend, in whole or in part, the operation of the Commission's order pending the final hearing and determination of the suit. No order or injunction so restraining or suspending an order of the Interstate Commerce Commission shall be made by the commerce court otherwise than upon notice and after hearing, except that in cases where irreparable damage would otherwise ensue to the petitioner, said court, or a judge thereof, may, on hearing, after not less than three days' notice to the Interstate Commerce Commission and the Attorney-General, allow a temporary