shall be the duty of the Commission to forthwith cause a copy of its report in respect thereto to be delivered to such common carrier, together with a notice to said common carrier, to cease and desist from such violation, or to make reparation for the injury so found to have been done, or both, within a reasonable time, to be specified by the Commission; and if, within the time specified, it shall be made to appear to the Commission that such common carrier has ceased from such violation of law, and has made reparation for the injury found to have been done, in compliance with the report and notice of the Commission, or to the satisfaction of the party complaining, a statement to that effect shall be entered of record by the Commission, and the said common carrier shall thereupon be relieved from further liability or penalty for such particular violation of law."

Section 16 provides that if the carrier fails to observe an order of the Commission application may be made, in case the order be to cease and desist, to the Circuit Court of the United States sitting as a court of equity, which may enforce the order by use of its mandatory powers if necessary; if the order be for the payment of money damages, to the Circuit Court upon its law side, which shall try the issue by jury unless the right to such form of trial is waived.

To properly understand the application of these sections it is necessary to have in mind the subject matter to which they were intended to apply, the peculiar conditions which they were framed to meet. Giving attention to the damages arising out of the exaction of an unreasonable rate, it is evident that the carrier and the shipper do not stand upon an equality. The rate is paid by thousands of different persons; it is received by but one. The amount paid by any individual shipper is usually small; the total amount received by the carrier may be enormous. Consider by way of illustration the case before us. The illegal exaction is a single dollar upon a carload. To the very largest shipper this can hardly amount to more than a few hundred dollars, while to the carriers in the aggregate it approximates

a quarter of a million dollars annually. The shipper is usually of small means, the railway of vast resources. It is plain that the mere right to sue in court and recover back an unreasonable rate affords the public in most cases no substantial protection. The one who pays the freight cannot afford to sue; will not sue, as the history of a half century proves. While the exactions of railroads during that period have been sufficient to produce political revolutions, there are few, if any, instances in which a suit to recover an unreasonable rate has ever been prosecuted to final judgment. Beyond question one of the purposes of this Act was to provide a means for the protection of the public against the exactions of railways, and one method adopted for the accomplishment of this purpose was to permit those who have a common interest to combine in the prosecution of that interest. The 13th section demonstrates this. Not merely the individual shipper who is injured, but the municipality, the industry, the voluntary association, the state railroad commission, may institute complaint, and when such complaint has been made this Commission is instructed, if there appears reasonable ground for so doing, "To investigate the matters complained of in such manner and by such means as it shall deem proper."

If, as the result of such investigation, it turns out that the carriers are in violation of law the Commission may order them to cease and desist from such violation in the future. It may also direct that reparation be made for damages sustained in the past; and it is evident that the awarding of damages held a conspicuous place in the mind which designed this act. The 14th section provides that the Commission shall, in all cases, make a report of its conclusions, which shall include "Its recommendation as to what reparation, if any, should be made by the common carrier to any party or parties who may be found to have been injured." It is provided by the 15th section that if, in the course of an investigation, it is made to appear "That any injury or damage has been sustained by the party or parties complaining, or by other parties aggrieved in consequence of any such violation," it shall be the duty of the Commission to order reparation. The question now before us is, to whom can

this reparation be awarded. Plainly a trade association, a municipality, an agricultural society, a railroad commission, pays no freight money. Now in case complaint be made by a complainant of this character against the unreasonableness of a rate and that complaint is sustained, can damages be given? The defendant insists that this cannot be done; that damages can only be awarded to a party who has paid the rate and who brings and prosecutes the complaint. The complainant insists that it may be done, that when once, upon proper complaint and after proper hearing, it has been determined that a particular rate is unreasonable, any shipper who has paid that rate may enter in that proceeding, prove the fact and amount of payment, and have the benefit of an order for reparation.

Much may be said in favor of the position of the complainant. The act itself requires that rates shall be the same to all shippers. Two questions are involved in a suit to recover for the payment of an unreasonable rate; first, is the rate unreasonable; second, has the party seeking the recovery paid the rate. The first question is common to every proceeding for the recovery of the same rate. If that be unreasonable as to one it is unreasonable as to all. When that question has been litigated and decided in a particular suit, what reason is there why every one who has paid that rate should not be allowed to appear in that suit prove his damages and obtain his order? If the date of the appearance be treated, as it probably should be in case of a party in no way identified with the original proceeding, as the beginning of a suit by that party to collect these damages, how could the carrier be prejudiced by this method of procedure? As already said, the defendant must be fully notified of the amount claimed and of all those circumstances attending the payment which are necessary to enable it to prepare its defense; but why should the claimant be compelled to relitigate the question of the reasonableness of the rate which has once been decided? It may be possible to imagine instances in which this would work hardship or inconvenience, but these could be provided against since the permission to intervene would be allowable in the discretion of the Commission.

We do not find it necessary, however, to pass upon this ques

tion in the present case. The only parties asking reparation are

the members of the Cattle Raisers' Association of Texas. This association was the original complainant and asked in its original petition for reparation in behalf of its members. It is not an incorporated body and probably could not prosecute in court a suit for the enforcement of an order for reparation if one were made in its behalf. It does not ask for such an order in its own behalf, but it asks that it may be allowed to make proof that its members have paid this illegal charge, and that thereupon the Commission direct the carriers to refund to such persons the illegal exaction.

We are inclined to sustain the position of the complainant to this extent. Some effect should be given to the words of the 14th and 15th sections above quoted. This association is a proper party complainant. It filed its complaint in due form of law alleging, among other things, that its members were being compelled to pay this illegal charge and asking that the carriers be ordered to make restitution to them. We think that under that complaint the association should be permitted to show that its members have sustained this damage, and that when this has been done it will be our duty to make an order upon the carriers for the repayment of these exactions. It will have appeared in the investigation of this complaint, upon lines entirely within the original complaint, that damage has been sustained by certain parties who are thereupon entitled to an order for reparation. Unless this can be done it is difficult to see what advantage is offered by proceeding before the Commission in the collection of damages. No counsel fee is allowed and subsequent suit must be brought in court to enforce the order. While this question has never been formally discussed and decided by the Commission, hitherto it has been our practice to order reparation in behalf of the members of complaining associations. Independent Refiners' Asso. v. Western New York & P. R. Co. 6 I. C. C. Rep. 378; Board of Trade of Lynchburg v. Old Dominion S. S. Co. 6 I. C. C. Rep. 633.

Since the law in this respect is unsettled and in order that all phases of this question may be presented to the court it would probably be well for the members of this association who

MU

seek damages, to file a claim in the nature of an intervening petition stating that they are members of the association, have paid the charges in question and seek to recover the same in this suit. Such statement should also be accompanied by a specification giving as definitely as possible the dates and amounts paid.

The defendants insist that if the individual members of the Cattle Raisers' Association, or any other persons who have paid this terminal charge, are allowed to recover in this suit the amount of such payments, then their appearance in the case must be treated as the beginning of a new action as of the date of such appearance, and that, therefore, a very considerable part of such claims would be barred by the statute of limitations. It' is not definitely pointed out what statute of limitations would apply nor within what time such claim would be recoverable. The complainant meets this by saying that at common law there was no limitation of actions; that there is no limitation upon this right of action, which is created by a federal statute, unless imposed by some other federal statute; that the judiciary act prescribes the rule of limitation which shall be enforced in the federal courts, but that such act does not apply to this Commission since it is not a court; that no other statute fixes a limit of time within which claims like that under consideration shall be presented to the Commission, hence there is no such limitation.

It seems to be true that no statute of limitations existed at common law; the Supreme Court of the United States has declared that but for the judiciary act there would be no time limit to the bringing of personal actions in the federal courts. Michigan Insurance Bank v. Eldred, 130 U. S. 693, 32 L. ed. 1080, 9 Sup. Ct. Rep. 690. The defendants themselves insist that this Commission is not a court, and this being so the judiciary act cannot apply to proceedings before it. We are inclined to agree with the complainant to this extent, although it might not be a violent presumption to say that while the Commission is not and cannot be a judicial body in the strict sense of that term, still when Congress invested it with its present duties, when it provided that suits for recovery of these damages might