company for disobedience of an order of the Commission in the matter of such rates. 40 And one or more of several connecting carriers need not be made parties to a proceeding before the Commission against another connecting carrier for unlawful discrimination in rates between places wholly on its own line 41 as compared with the through rate over the connecting lines, even having the same effect.42 So where one railroad company owns a controlling interest in a subsidiary company, while service of complaint on the controlling company may not be legal service upon a subsidiary company, it does in fact, for all practical purposes, inform the other company of the proceedings. 43 But it is sometimes inconvenient to get all the carriers before the Commission at the same time; and a hearing of a complaint against one of a number of connecting carriers may be the only practical thing.44 Then an order may issue against the respondents, and the cause be held for the purpose of bringing such other carriers into it to be proceeded against unless they comply with the order.45 Thus while a railroad company, operating its road as part of a through line in connection with other carriers, defendants in a case brought to test the legality of a through charge over such line, is a proper party, it is not a necessary party to the proceeding.46 And in proceedings to determine the reasonableness of a through rate as augmented by an alleged unlawful terminal charge, all the carriers participating in the through rate are not necessary parties; the only necessary parties defendant, are the carriers who retain the terminal charge for their own use." 47 In one proceeding a complaint for

40 Texas & P. R. Co. v. Interstate Commerce Commission, 162 U. S. 197, 40 L. ed. 940, 16 Sup. Ct. 666, 5 Int. Com. Rep. 405.

41 Daniels v. Chicago, R. I. & P. R. R., 6 I. C. C. Rep. 458.

42 Independent Relief Ass'n V. Western N. Y. & P. R. R., 6 I. C. C. 378.

43 Mayor and City Council of

Wichita v. Atchison, T. & S. F. R. R., 9 I. C. C. 534.

44 Hurlburt v. Lake Shore & M. S. R. R., 2 Int. Com. Rep. 81, 2 I. C. C. 122.

45 Bates v. Pennsylvania R. R., 2 Int. Com. Rep. 715, 3 I. C. C. 435. 46 Warren-Ehret Co. v. Central R. R., 8 I. C. C. Rep. 598.

47 Cattle Raisers' Ass'n v. Chicago,

damages named one road as defendant but it was held that the two connecting lines were necessary parties, such roads being operated as independent properties, though controlled, through stock ownership, by the road named as defendant. 48 And in a general inquiry the Commission I will not undertake to establish differentials where all the carriers interested are not before it.49

§ 1097. Liabilities in through carriage.

The liability of the carriers, in case of an unreasonable or discriminatory joint or through rate, is joint and several, and damages may be awarded against one of such roads which participated in the movement, though other roads performing part of the service are not made parties.50 It is for this reason fundamentally that all participating carriers must be joined in attack on joint rates.51 However, reparation will be awarded against an initial carrier which has published a joint through rate in which connecting lines named had not concurred, the combination rate legally applicable being found unreasonable.52 Where only a portion of a combination through rate is attacked, it is not necessary to join as defendants all the carriers that are parties to such rate. 53 But where the interests of many carriers are involved in the determination the Commission will insist upon having all before it.54 Generally speaking, all carriers participating in a through movement should share in refunding if the rate charged is found unreasonable.55 But where an overcharge is due to the fault of one carrier misrouting, the carrier to blame should make

B. & Q. R. R., 10 I. C. C. Rep.

83.

48 Mountain Ice Co. v. D., L. & W. R. R., 21 I. C. C. 45.

49 Boileau v. P. & L. E. R. R., 24 I. C. C. 129.

50 Webster Grocery Co. v. C. & N. W. Ry., 21 I. C. C. 20.

51 Reno Grocery Co. v. So. Pac., 23 I. C. C. 401.

52 Texico Transfer Co. v. L. & N. R. R., 20 I. C. C. 17.

53 Globe Milling Co. v. C., M. & St. P. Ry., 24 I. C. C. 594.

54 Boileau v. P. & L. E. R. R., 24 I. C. C. 129.

55 Platten Produce Co. v. K. L. S. & C. Ry., 18 I. C. C. 249.

the whole refund. 56 And both the initial and connecting carrier will be required to pay reparation where they were both at fault for misrouting the shipment.57 Where a connecting line failed to observe a reconsignment order, it was held to be the one liable in reparation for misrouting.58 Whereas if the initial carrier is in fault, it is the one to stand for the recovery in reparation. 59 Reparation against carriers jointly may usually be divided according to agreement between lines.60 But to require or permit any other carrier than the one responsible for misrouting to participate in making reparation would be to permit or require departure from established rates, which is expressly forbidden by law.61

§ 1098. Who entitled to reparation.

The law contemplates that an award of damages shall be made to the person actually damaged; and so where the complainant does not appear to have suffered any injury, having no legal interest in an overcharge, the Commission can make no award of reparation.62 Moreover, it must be shown affirmatively that the complainant is the proper party entitled to damages; the admission of the defendant is not sufficient.63 Generally speaking the person entitled to an award of damages on the ground of the unreasonableness of a rate is the one who has actually paid the rate.64 A shipper who had not paid the freight rate nor sustained any loss held not to be entitled to damages, although the rate charged on his shipments was found unduly discriminatory.65 It is the view of the Com

56 Flaccus Glass Co. v. C., C., C. & St. Louis Ry., 14 I. C. C. 333.

57 Beekman Lumber Co. v. O. Ry. & N. Co., 19 I. C. C. 343.

58 Noble v. J. L. C. & E. R. R., 20 I. C. C. 520.

59 Noble v. St. L. & S. F. R. R., 16 I. C. C. 186.

60 Davenport Pearl Button Co. v. Chicago, B. & St. L. R. R., 17 I. C. C. 193.

61 Hennepin Paper Co. v. N. P. R. R., 12 I. C. C. 535.

62 Lamb, McGregor & Co. v. C. & N. W. Ry., 22 I. C. C. 346.

63 Baker Mfg. Co. v. C. & M. W. Ry., 21 I. C. C. 605.

64 National Wool Growers' Ass'n v. O. S. L. R. R., 25 I. C. C. 675.

65 Evens & Howard Fire Brick Co. v. St. L., I. M. & S. Ry., 25 I. C. C. 141.

mission that an award of reparation is due only from a carrier to a shipper, and not to one carrier, as a carrier, from another.66 But section 20 provides that the initial carrier has a right of action against a connecting carrier for any loss or damage to property occurring on the latter's line. If the complaining party is the one who sustained the burden of the excess, he is the one entitled to reparation.68 Thus reparation is due the owner of property paying excessive charge or on whose behalf it was paid.“9

§ 1099. As between consignor and consignee.

69

70

Where freight charges are paid by the consignee to whom the goods had been sold, it is plain that the consignor is not the party who is entitled to damages. And a purchaser of goods in transit, the vendor having paid the freight charges up to point of purchase, is the one entitled to damages for misrouting." A consignee, who paid the freight charges on a shipment place of destination, but deducted that amount from the invoice price of goods, returning the expense bills to the consignor, is not entitled to damages.72 And, likewise, the consignor is entitled to damages for an unreasonable rate, where a consignee commission merchant actually paid the freight charges, but billed them back on the consignor, who ultimately paid them.73 Although the complainant is a broker, nevertheless if the shipments were purchased outright by him, he is entitled to an award of reparation.7 But unless the goods are sold, the vendee to pay the

74

70 Fond du Lac Church Furnishing Co. v. C., M. & St. P. Ry., 21 I. C. C. 481.

71 Gibson Fruit Co. v. C. & N. W. Ry., 21 I. C. C. 644.

72 Baker Mfg. Co. v. C. & N. W. Ry., 21 I. C. C. 605.

73 Youngblood v. T. & P. Ry., 21 I. C. C. 569.

74 Central Commercial Co. v. A., T. & S. F. Ry., 26 I. C. C. 373.

freight, the consignor is the substantial party in interest, and entitled to the damages for improper exactions. 75 Where the complainant is a commission merchant, neither consignor nor consignee, it will be difficult to show that he is the real party in interest.76 But commission merchants who were under obligation to pay freight charges are upon the face of the transaction the only proper parties who can maintain suit for an overcharge or an excessive rate." Per contra the consignor, who sold goods at a delivered price under contract that consignor should pay the freight, is entitled to the damages, though the consignee actually paid freight charges.78 And a consignee who has paid charges based on an unreasonable rate is not entitled to reparation where such charges have been deducted from the shippers' invoice.79

Topic C. Order of Procedure

§ 1100. Default for failure to proceed.

The petition will be dismissed if the complainant fails to appear at the hearing.80 The same result naturally follows if he admits the legality of the defendant's acts.81 And a complainant can expect nothing but dismissal if he totally fails to produce any evidence to prove the issue.82 The Commission has had occasion to say sharply that it is not enough to file a complaint, the party complaining must pursue it.83 And generally speaking if the complainant fails to appear, the complaint will be dismissed.84

75 Commercial Club of Omaha v. A. & S. Ry., 27 I. C. C. 302.

76 Jones v. K. C. S. Ry., 17 I. C. C. 468.

77 Crutchfield & Woolfolk v. S. P. Co., 24 I. C. C. 679.

78 Mountain Ice Co. v. D., L. & W. R. R., 21 I. C. C. 596.

79 Deming Lumber Co. v. S. P. Co., 24 I. C. C. 598.

80 Jackson v. St. Louis, A. & T. Ry., 1 I. C. R. 599.

81 Re Export Trade of Boston, 1 Int. Com. Rep. 25, I. C. C. 24.

82 Holbrook v. St. Paul, M. & M. R. R., 1 Int. Com. Rep. 323, 1 I. C. C. 102; Leonard v. Union Pacific Ry., 1 Int. Com. Rep. 627; Rice v. Louisville & N. R. R., 1 Int. Com. Rep.

722.

83 Advance Thresher Co. v. Orange & N. W. R. R., 15 I. C. C. 599.

84 Guthril v. Chicago, R. I. & P. Ry., 16 I. C. C. 425.