and we are asked to inquire into this. The idea, apparently, is that if a reduction nullified the effect of the terminal charge, a subsequent advance should restore things to their original position. We think, however, that it was conclusively determined by the decision of the United States Supreme Court that the addition of this terminal charge from territory where the reduction was made was not illegal at a certain time. Any advance in rates from that territory since must be a matter of independent inquiry and should be by a new proceeding.

We will allow damages in favor of the members of the Cattle Raisers' Association of Texas from all territory down to the reduction of 1896, and from territory to which that reduction did not apply down to the present time. There may be some question whether these damages should extend beyond the date of our original order, but we think that the presumption is that the condition of things continues as it then existed, and that the complainants should be allowed damages in this accounting up to the date of hearing. Those accruing before and those since the order should, however, be kept separate so that, if this opinion turns out to be wrong, the whole order will not be vitiated. Since conditions may have changed since the date of that order the defendants will be allowed to show, if they desire, such subsequent facts as make now the entire through rate, including the terminal charge, a reasonable one.

The Chicago Live Stock Exchange did not claim reparation in its petition of intervention. If that association desired to so amend its petition at the present time as to ask for reparation we should probably permit the amendment. Our impression is that such an amendment would introduce a new cause of action and that the date of the amendment ought probably to be regarded as the beginning of proceedings for the recovery of reparation by the members of that association, but we should be inclined to receive proof of damages accruing at all times since the imposition of the terminal charge, separating the items in such way that the court might finally pronounce the proper judgment. It should be noted that if we err against the complainant there is no way in which the error can be corrected, while if we err against the defendants that mistake can be cured

by the court in proceedings brought to enforce our order. We are inclined in the present uncertain state of the law to afford the complainants an opportunity to secure from the court an authoritative interpretation of the act in these respects.

We will proceed in the matter of reparation as above indicated. As already noted, this is not a re-opening of the case, for upon this branch it has never been closed.

We are also petitioned to re-open this case for the purpose of inquiring from what territory rates were not reduced with a view to making a new order requiring the defendants to cease and desist from making this charge as to the shipments from that territory. This presents an entirely different question. The power of the Commission to make an order for reparation has never been exercised; it has made an administrative order requiring the defendants to desist from imposing this terminal charge and the courts have refused to enforce that order. Can it make another order in the same proceeding? The defendants say not, and invoke the rule of res judicata.

The principle of judicial estoppel as such can hardly apply to the decisions of the Commission in a case like this. That doctrine is founded upon the rule of public policy that litigation must have an end. It is better that now and then a controversy should be decided wrong than that all controversies should be left open indefinitely. This necessarily further assumes that the right decision of a given question is the same at all times. Such is not the case with questions like that here presented for the consideration of the Commission. There is no absolute rule by which the reasonableness of a rate can be determined. That depends upon competitive, commercial and operating conditions which are continually varying. A conclusion eminently proper upon the facts of today would, perhaps, be entirely wrong tomorrow. The authority which is exercised by the Commission in the making of an order to cease and desist from charging a particular rate is rather administrative than judicial and in the nature of things of a continuing character. It would be most. unfortunate both for the railway and the public and most illogical to apply to the exercise of that power the doctrine of res judicata.

This does not mean that the Commission will re-try the same question. Upon the other hand when a certain situation has been fully considered and a decision reached that decision will ordinarily control in the absence of changed conditions both between the same parties and between other parties; this, however, not as a matter of law, but as a matter of discretion. Railroad Commission of Kansas v. Atchison, T. & S. F. R. Co. 8 I. C. C. Rep. 304, 308.

The defendants insist that if there is no absolute estoppel upon the record, still the Commission is without authority to proceed in this case because its power in that behalf has been exhausted; having once passed upon the question presented it is functus officio. In support of that proposition our attention is called to several cases in which it is held with respect to various bodies like boards of audit, supervisors, commissioners for the assessment of damages and such like, that having once acted upon a given matter, and published their decision according to the statute creating them, they cannot reconsider that action. The case, Union Terminal R. Co. v. Board of Railroad Commissioners of Kansas, 54 Kan. 352, 38 Pac. 290, is especially referred to.

The statute of Kansas provided that where one railroad desired to cross another it might apply to the Board of Railroad Commissioners, which should, upon inquiry, determine the necessity for the crossing, fix the manner and award the damages. The Union Terminal Company, desiring to cross certain tracks in the vicinity of Kansas City, Kansas, made application to the Board of Railroad Commissioners who heard the case, granted the right to cross, specified the manner in which the crossing should be made, and awarded damages to the various companies whose lines were crossed. Under the statute an appeal would lie from this decision, but none was in fact taken, and the Terminal Company proceeded to expend large sums of money with a view to crossing in the manner indicated. Some four months after the award, the personnel of the board having entirely changed, another petition was preferred by the railroad companies, defendants in the first proceeding, asking the Commissioners to review that matter and make a new and different

was subsequently brought in court. Guild v. Hale, 15 Mass.

155.

The principle of these cases seems to be that where the statute establishes a method of procedure for the enforcement of a right of action which finally results in bringing that matter by the prescribed course before a court for determination, the first step which must be taken in the proceeding to enforce the claim should be treated as the beginning of the suit which finally results. So here, if a party elects to proceed for the recovery of his damages before the Commission he must file his petition with it, and that should be considered the beginning of his action in all its subsequent stages.

Without doubt there are practical difficulties in the way of an application of this rule. It often, perhaps usually, happens that an order for reparation may be enforced in several jurisdictions in which the period of limitation may differ. Not knowing in what jurisdiction suit will be brought the Commission cannot determine what statute of limitations should be applied by it. This difficulty is, however, more apparent than real, since the Commission would probably follow the indication of the claimant that he intended to pursue his remedy in a particular forum.

While the statute of limitations has been discussed at some length we desire to repeat that in our opinion it has no application to the present case. Assuming that the members of the Cattle Raisers' Association should be treated as intervening petitioners now appearing by name upon the record for the first time, still we think, as to them, this suit was begun by the filing of the original petition. It is like a creditors' bill brought by a single creditor for the benefit of all, which interrupts the running of the statute as to all those who subsequently come in and prove their claims. Richmond v. Irons, 121 U. S. 27, 30 L. ed. 864, 7 Sup. Ct. Rep. 788. This proceeding was expressly begun for this purpose on account of the members of this association and they ought to have the benefit of it.

It is alleged that rates have been advanced from that territory to which the reduction applied so that the total rate is now higher than it was when the terminal charge was first added

and we are asked to inquire into this. The idea, apparently, is that if a reduction nullified the effect of the terminal charge, a subsequent advance should restore things to their original position. We think, however, that it was conclusively determined by the decision of the United States Supreme Court that the addition of this terminal charge from territory where the reduction was made was not illegal at a certain time. Any advance in rates from that territory since must be a matter of independent inquiry and should be by a new proceeding.

We will allow damages in favor of the members of the Cattle Raisers' Association of Texas from all territory down to the reduction of 1896, and from territory to which that reduction did not apply down to the present time. There may be some question whether these damages should extend beyond the date of our original order, but we think that the presumption is that the condition of things continues as it then existed, and that the complainants should be allowed damages in this accounting up to the date of hearing. Those accruing before and those since the order should, however, be kept separate so that, if this opinion turns out to be wrong, the whole order will not be vitiated. Since conditions may have changed since the date of that order the defendants will be allowed to show, if they desire, such subsequent facts as make now the entire through rate, including the terminal charge, a reasonable one.

The Chicago Live Stock Exchange did not claim reparation in its petition of intervention. If that association desired to so amend its petition at the present time as to ask for reparation we should probably permit the amendment. Our impression is that such an amendment would introduce a new cause of action and that the date of the amendment ought probably to be regarded as the beginning of proceedings for the recovery of reparation by the members of that association, but we should be inclined to receive proof of damages accruing at all times since the imposition of the terminal charge, separating the items in such way that the court might finally pronounce the proper judgment. It should be noted that if we err against the complainant there is no way in which the error can be corrected, while if we err against the defendants that mistake can be cured