was held not to require the return of evidence which was excluded.13 Where a party wished to have the court upon appeal review evidence that had been excluded, he was required either to except below to the ruling excluding the same and bring the matter up by assignments of error or else offer it as additional evidence upon the appeal.14 An importer who had offered evidence before the board was not thereby precluded from introducing new evidence in the Circuit Court upon an appeal from the board's decision.15 Where no new evidence was offered by the importers before the Board of General Appraisers, it was held that they could offer none before the Circuit Court.16

§ 77a. Jurisdiction of the Interstate Commerce Commission. The Interstate Commerce Act is enforced primarily by the Interstate Commerce Commission. The orders of the Interstate Commerce Commission are enforced by the courts. The courts have also power to review, to set aside, and to restrain the enforcement of the orders of the Commission in proper cases. The Interstate Commerce Commission was created by the Act of February 4, 1887, which has since been repeatedly amended.

18 Harris v. U. S., 177 Fed. 475. 14 Ibid.

15 Wm. Wolff & Co. v. U. S., 168 Fed. 970.

16 William F. Allen & Co. v. U. S., 127 Fed. 777. See also U. S. v. Klingenberg, 153 U. S. 93, 38 L. ed. 647; U. S. v. Jahn, 155 U. S. 109, 39 L. ed. 87; U. S. v. Lies, 170 U. S. 628, 42 L. ed. 1170; Earnshaw v. U. S. 146 U. S. 60, 36 L. ed. 887; Apgar v. U. S., C. C. A., 78 Fed. 332; Marine v. Lyon, C. C. A., 5 Fed. 992; U. S. v. Davis, C. C. A., 54 Fed. 147; Re Marquard, 57 Fed. 189; U. S. v. Rosenwald, C. C. A., 67 Fed. 323; White v. U. S., C. C. A., 72 Fed. 251; U. S. v. Lies, 74 Fed. 546; U. S. v. Kenworthy, C. C. A., 668 Fed. 904; "Zante Currants," 73 Fed. 183; Sang Lung v. Jackson, 85 Fed. 502;

Foster v. Voeke, 60 Fed. 745; Re Chase, 50 Fed. 695; Re Wyman, 45 Fed. 469; Re Sternbach, 44 Fed. 413; Re Sherman, 49 Fed. 224; s. c., sub nom. Re Collector of Customs, C. C. A., 55 Fed. 276; Re Kursheedt Mfg. Co., 49 Fed. 633; s. c., C. C. A., 54 Fed. 159; Re Muser, 49 Fed. 831; Re Crowly, 50 Fed. 465; s. c., C. C. A., 55 Fed. 283; Re Bache, 54 Fed. 371; s. c., U. S. v. Bache, C. C. A., 59 Fed. 762; Mexican Onyx & Tr. Co. v. U. S., 66 Fed. 732; Re Buffalo Natural Fuel Co., 73 Fed. 191; s. c., U. S. v. Buffalo N. G. F. Co., C. C. A., 78 Fed. 110; Stern v. U. S., 77 Fed. 607; Lesser v. U. S., 89 Fed. 197; U. S. v. Hahn, 91 Fed. 755; Morris E. & A. Ex. Co. v. U. S., 94 Fed. 6643; Re F. W. Myers & Co., 123 Fed. 952.

The latest amendments are contained in the Transportation Act of February 28, 1920.

The Interstate Commerce Commission consists of eleven members with terms of seven years, except that the terms of those appointed to fill vacancies, expires at the same time as the original term of the commissioners whom they succeed. Each of them receives as compensation $12,000 a year. Not more than three of the commissioners can be appointed from the same political party. "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 any common carrier subject to the provisions of this act, or owning stock or bonds thereof, or who is any manner pecuniarily interested therein, shall enter upon the duties of or hold such office. Said Commissioners shall not engage in any other business, vocation, or employment. No vacancy shall in the Commission impair the right of the remaining Commissioners to exercise all the powers of the Commission."1

The statute provides: "The Commission hereby created shall have authority to inquire into the management of the business of all common carriers subject to the provisions of this 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:

"(1) The provisions of this Act shall apply to common carriers engaged in

"(a) The transportation of passengers or property wholly by railroad, or partly by railroad and partly by water when both are used under a common control, management, or arrangement for a continuous carriage or shipment; or

"(b) The transportation of oil or other commodity, except

§ 77a. 1 Act of Feb. 4, 1887, ch. 104. § 11, 24 St. at L., 383, Comp. St. & 8575; Act of June 29, 1906, ch. 3591, adding $24, 34 St. at L.

595, as amended Aug. 9, 1917, ch. 50, 40 St. at L. 270, as amended Act of Feb. 28, 1920, Comp. St. § 8396.

water and except natural or artificial gas, by pipe line, or partly by pipe line and partly by railroad or by water; or

"(c) The transmission of intelligence by wire or wireless;from one State or Territory of the United States, or the District of Columbia, to any other State or Territory of the United States, or the District of Columbia, or from one place in a Territory to another place in the same Territory, or from any place in the United States through a foreign country to any other place in the United States, or from or to any place in the United States to or from a foreign country, but only in so far as such transportation or transmission takes place within the United States.

"(2) The provisions of this Act shall also apply to such transportation of passengers and property and transmission of intelligence, but only in so far as such transportation or transmission takes place within the United States, but shall not apply

"(a) To the transportation of passengers or property, or to the receiving, delivering, storage, or handling of property, wholly within one State and not shipped to or from a foreign country from or to any place in the United States as aforesaid: (b) To the transmission of intelligence by wire or wireless wholly within one State and not transmitted to or from a foreign country from or to any place in the United States as aforesaid; or

"(c) To the transportation of passengers or property by a carrier by water where such transportation would not be subject to the provisions of this act except for the fact that such carrier absorbs, out of its port-to-port water rates or out of its proportional through rates, any switching, terminal, lighterage, car rental, trackage, handling, or other charges by a rail carrier for services within the switching, drayage, lighterage, or corporate limits of a port terminal or district.

"(3) The term 'common carrier' as used in this Act shall include all pipe-line companies; telegraph, telephone, and cable companies operating by wire or wireless; express companies; sleeping-car companies; and all persons, natural or artificial, engaged in such transportation or transmission as aforesaid as common carriers for hire. Wherever the word 'carrier' is used in this Act it shall be held to mean 'common carrier.'

The

term 'railroad' as used in this Act shall include all bridges, car floats, lighters, and ferries used by or operated in connection with any railroad, and also all the road in use by any common carrier operating a railroad, whether owned or operated under a contract, agreement, or lease, and also all switches, spurs, tracks, terminals, and terminal facilities of every kind used or necessary in the transportation of the persons or property designated herein, including all freight depots, yards, and grounds, used or necessary in the transportation or delivery of any such property. The term 'transportation' as used in this Act shall include locomotives, cars, and other vehicles, vessels, and all instrumentalities and facilities of shipment or carriage, irrespective of ownership or of any contract, express or implied, for the use thereof, and all services in connection with the receipt, delivery, elevation, and transfer in transit, ventilation, refrigeration or icing, storage, and handling of property transported. The term 'transmission' as used in this Act shall include the transmission of intelligence through the application of electrical energy or other use of electricity, whether by means of wire, cable, radio apparatus, or other wire or wireless conductors or appliances, and all instrumentalities and facilities for and services in connection with the receipt, forwarding, and delivery of messages, communications, or other intelligence so transmitted, hereinafter also collectively called

messages.

(4) It shall be the duty of every common carrier subject to this Act engaged in the transportation of passengers or property to provide and furnish such transportation upon reasonable request therefor, and to establish through routes and just and reasonable rates, fares, and charges applicable thereto, and to provide reasonable facilities for operating through routes and to make reasonable rules and regulations with respect to the operation of through routes, and providing for reasonable compensation to those entitled thereto; and in case of joint. rates, fares, or charges, to establish just, reasonable, and equitable divisions thereof as between the carriers subject to this Act participating therein which shall not unduly prefer or prejudice any of such participating carriers.

"(5) All charges made for any service rendered or to be rendered in the transportation of passengers or property or

Fed. Prac. Vol. I-26

in the transmission of intelligence by wire or wireless as aforesaid, or in connection therewith, shall be just and reasonable, and every unjust and unreasonable charge for such service or any part thereof is prohibited and declared to be unlawful: Provided, That messages by wire or wireless subject to the provisions of this Act may be classified into day, night, repeated, unrepeated, letter, commercial, press, Government, and such other classes as are just and reasonable, and different rates may be charged for the different classes of messages: And provided further, That nothing in this Act shall be construed to prevent telephone, telegraph, and cable companies from entering into contracts with common carriers for the exchange of services.

"(6) It is hereby made the duty of all common carriers subject to the provisions of this Act to establish, observe, and enforce just and reasonable classifications of property for transportation, with reference to which rates, tariffs, regulations, or practices are or may be made or prescribed, and just and reasonable regulations and practices affecting classifications, rates, or tariffs, the issuance, form, and substance of tickets, receipts, and bills of lading, the manner and method of presenting, marking, packing, and delivering property for transportation, the facilities for transportation, the carrying of personal, sample, and excess baggage, and all other matters relating to or connected with the receiving, handling, transporting, storing, and delivery of property subject to the provisions of this Act which may be necessary or proper to secure the safe and prompt receipt, handling, transportation, and delivery of property subject to the provisions of this Act upon just and reasonable terms, and every unjust and unreasonable classification, regulation, and practice is prohibited and declared to be unlawful.

"(7) No common carrier subject to the provisions of this Act, shall, after January first, nineteen hundred and seven, directly or indirectly, issue or give any interstate free ticket, free pass, or free transportation for passengers, except to its employees and their families, its officers, agents, surgeons, physicians, and attorneys at law; to ministers of religion, traveling secretaries of railroad Young Men's Christian Associations, inmates of hospitals and charitable and eleemosynary institutions, and persons exclusively engaged in charitable and eleemosynary