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Commerce Commission, 162 U. S. 197, 40 L. Ed. 940, 16 Sup. Ct. 666, 5 Int. Com. Rep. 405. Re Export and Domestic Rates on Grain, 8 Int. Com. Rep. 214 (1899).

§ 1036. Report of Commission.

The report of the Commission should be framed after the manner of a Master's report to a Court of Chancery. It is not sufficient for the Commission in a report of its findings of fact and conclusions, to make statements in such a general way as not to disclose its view upon particular phases of the evidence, or its conclusions of law upon facts found with reference to the particular issues in the case, and make up the report of mere conclusions. In the case of Interstate Commerce Commission v. Louisville & N. R. R., 73 Fed. 410, 5 Int. Com. Rep. 656 (1896), Judge Clark said: "The procedure in a complaint before the Commission is prescribed in section 13 of the act, and by section 14 the Commission is required to make a report in writing in respect thereto, which shall include the findings of fact upon which the conclusions of the Commission are based, and such findings so made are to be deemed prima facie evidence as to each and every fact found in any judicial proceeding thereafter had. The Commission is authorized to provide for the publication of its reports and decisions, and for the distribution thereof. Other sections of the act, not necessary to be set out herein, make it evident, in my opinion, that while the investigation and report of the Commission and its order thereon, as stated, do not constitute a judicial proceeding, still it was the intention of Congress that the procedure should substantially conform to that before a court charged with the duty of finding the facts, and giving judgment thereon, or to the investigation and report of a referee or special master in chancery, passing on both facts and law. Congress having provided for such investigation and report in general terms only, it is not to be doubted that substantial conformity to a judicial proceeding was contemplated. And the importance of the Commission's action, taking substantially the form of a judicial proceeding, is apparent when it is recognized that the Commission is composed of men of ability and experience, selected for this position with reference to their particular qualifications therefor, and whose entire time is devoted to questions arising under this act. This gives to the Commission's finding and opinion great weight, and entitles it to great consideration, both by the parties affected and by the courts, when called upon to enforce obedience to its mandates. For the Commission's investigation and opinion to have this intended value, however, it should, in fact, conform to the purpose of Congress in requiring such proceedings. It is not sufficient, therefore, in a report of its findings of fact and conclusions, to do so in such general way as not to disclose its views upon particular phases of the evidence, or its conclusions of law upɔn facts found with reference to the particular issues in the case. Stated in

another form, it is not sufficient for the report to be made up of mere conclusions. Its opinion or report should show what the issues in the case are, and what facts it finds in regard to such issues. The report should make suitable reference to the evidence adduced in regard to any particular question, where there is a conflict in the proof, showing how the Commission settles the disputed fact; or, if the evidence in regard to any issue is undisputed, state that fact. In other words, the report should give the parties to be affected, as well as the court, in any judicial proceeding afterwards instituted, definite and distinct information as to what was found as facts, and the Commission's opinion thereon, such as would be necessary to make a judicial opinion sufficient and satisfactory for the purpose of ordinary litigation. Now, the report of the Commission in this case does nothing of this kind. It was not intended to cast upon the courts the labor of an original and independent examination, as in a case instituted here in the first instance. If so, action by the Commission would be idle. The report should on all issues make a distinct showing, so that on its face it would be prima facie good as required under the act." See, also, Western N. Y. & P. R. R. v. Penn. Refining Co., 137 Fed. 343 (1905).

This is the principle on which the Commission proceeds; and it is its present practice to report its findings of fact separately from its conclusions. But neither before the above decision nor since does the Commission report cumulative evidence or mere details of evidence already embraced in substantial facts stated, upon which its findings are made. Riddle v. Pittsburg & L. E. R., 1 Int. Com. Rep. 773 (1888).

§ 1037. Opinion of Commission,

The Commission does not give opinions on abstract questions. Pennsylvania Co. v. Louisville, N. A. & C. R. R., 2 Int. Com. Rep. 603 (1889). So it will not construe the act before violation thereof is charged. Re Order of Railway Conductors, 1 Int. Com. Rep. 18 1, C. C. 8 (1887); Re Theatrical Rates, I Int. Com. Rep. 18 (1887); Re Inmates of Nat. Homes, I Int. Com. Rep, 73, 75 (1887); Boston & A. R. R. v. Boston & L. R. R., I Int. Com. Rep. 571 (1887). Nor will it express an opinion upon facts not brought before it by a petition within its jurisdiction. Re Iowa Barb Steel Wire Co., 1 Int. Com. Rep. 605 (1887); Re United States Commission of Fish and Fisheries, 1 Int. Com. Rep. 606 (1887). And it will not make rules as to free baggage until violation of act is charged. Re Order of Railway Conductors, Traders & Travelers Union v. Phila. & Reading R. R., 1 Int. Com. Rep. 18, 62, 315, 371 (1887).

TOPIC C-POWER OVER RATES.

[See Chapter XL.]

§ 1038. Early difference of opinion.

The Interstate Commerce Commission has no power under the Interstate Commerce Act to fix absolute or maximum rates. Cincinnati, N. 0. & T. P. Ry. v. Interstate Commerce Commission, 162 U. S. 184, 40 L. Ed. 935, 16 Sup. Ct. 700, 5 Int. Com. Rep. 391, B. & W. 424 (1896); Interstate Commerce Commission v. Cincinnati, N. O. & T. P. Ry., 167 U. S. 479, 42 L. Ed. 243, 17 Sup. Ct. 896 (1897); Interstate Commerce Commission v. Alabama Midland Ry., 168 U. S. 144, 42 L. E. 414, 18 Sup. Ct. 145, B. & W. 433 (1897).

This question was vigorously discussed before its final settlement by the Supreme Court. The opinion of the federal courts was practically unanimous against the existence of the power. Interstate Commerce Commission v. Baltimore & O. R. R., 43 Fed. 37 (1888); Interstate Commerce Commission v. Lehigh Valley R. R., 5 Int. Com. Rep. 643 (1896); Interstate Commerce Commission v. Northwestern Ry., 5 Int. Com. Rep. 650 (1896); Interstate Commerce Commission v. Louisville & N. R. R., 5 Int. Com. Rep. 656 (1896); Interstate Commerce Commission v. Alabama Midland Ry., 5 Int. Com. Rep, 685 (1896).

§ 1039. Decision of the Supreme Court.

It was finally decided by the Supreme Court of the United States in Interstate Commerce Commission v. Cincinnati, N. O. & T. P. Ry., 167 U. S. 479, 42 L. Ed. 243 17 Sup. Ct. 896 (1897). Mr. Justice Brewer thus discussed the question:

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"Before the passage of the act it was generally believed that there were great abuses in railroad management and railroad transportation, and the grave question which Congress had to consider was how those abuses should be corrected and what control should be taken of the business of such corporations. The present inquiry is limited to the question as to what it determined should be done with reference to the matter of rates. There were three obvious and dissimilar courses open for consideration. Congress might itself prescribe the rates, or it might commit to some subordinate tribunal this duty, or it might leave with the companies the right to fix rates, subject to regulations and restrictions, as well as to that rule which is as old as the existence of common carriers, to wit, that rates must be reasonable. There is nothing in the act fixing rates. Congress did not attempt to exercise that power, and, if we examine the legislative and public history of the day, it is apparent that there was no serious thought of doing so.

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The question debated is whether it vested in the Commission the power and the duty to fix rates, and the fact that this is a debatable question, and has been most strenuously and earnestly debated, is very persuasive that it did not. The grant of such a power is never to be implied. The power itself is so vast and comprehensive, so largely affecting the rights of carrier and shipper, as well as indirectly all commercial transactions, the language by which the power is given had been so often used, and was so familiar to the legislative mind, and is capable of such definite and exact statement, that no just rule of construction would tolerate a grant of such power by mere implication. Administrative control over railroads through boards or commissions was no new thing. It had been resorted to in England and in many of the States of this Union. In England, while control had been given in respect to discrimination and undue preferences, no power had been given to prescribe a tariff of rates. In this country the practice has been varying."

The learned judge then discussed the State acts, examined the terms of the Interstate Commerce Act, and reached these conclusions:

"We have therefore these considerations presented: First. The power to prescribe a tariff of rates for carriage by a common carrier is a legislative, and not an administrative or judicial, function, and, having respect to the large amount of property invested in railroads, the various companies engaged therein, the thousands of miles of road, and the millions of tons of freight carried, the varying and diverse conditions attaching to such carriage, is a power of supreme delicacy and importance. Second. That Congress has transferred such a power to any administrative body is not to be presumed or implied from any doubtful and uncertain language. The words and phrases.efficacious to make such a delegation of power are well understood, and have been frequently used, and, if Congress had intended to grant such a power to the Interstate Commerce Commission, it cannot be doubted that it would have used language open to no misconstruction, but clear and direct. Third. Incorporating into a statute the common-law obligation resting upon the carrier to make all its charges reasonable and just, and directing the Commission to execute and enforce the provisions of the act, does not by implication carry to the Commission, or invest it with the power to exercise, the legislative function of prescribing rates which shall control in the future. Fourth. Beyond the inference which irresistibly follows from the omission to grant in express terms to the Commission this power of fixing rates is the clear language of section 6, recognizing the right of the carrier to establish rates, to increase or reduce them, and prescribing the conditions upon which such increase or reduction may be made, and requiring, as the only conditions of its action-First, publication; and, second, the filing of the tariff with the Commission. The grant to the Commission of the power to prescribe the form of the schedules, and

to direct the place and manner of publication of joint rates, thus specifying the scope and limit of its functions in this respect, strengthens the conclusion that the power to prescribe rates or fix any tariff for the future is not among the powers granted to the Commission.

"These considerations convince us that under the Interstate Commerce Act the Commission has no power to prescribe the tariff of rates which shall control in the future, and therefore cannot invoke a judgment in mandamus from the courts to enforce any such tariff by it prescribed.

"But has the Commission no functions to perform in respect to the matter of rates, no power to make any inquiry in respect thereto? Unquestionably it has, and most important duties in respect to this matter. It is charged with the general duty of inquiring as to the management of the business of railroad companies, and to keep itself informed as to the manner in which the same is conducted, and has the right to compel complete and full information as to the manner in which such carriers are transacting their business. And, with this knowledge, it is charged with the duty of seeing that there is no violation of the long and short haul clause; that there is no discrimination between individual shippers, and that nothing is done, by rebate or any other device, to give preference to one as against another; that no undue preferences are given to one place or places or individual or class of individuals, but that in all things that equality of right, which is the great purpose of the Interstate Commerce Act, shall be secured to all shippers. It must also see that that publicity which is required by section 6 is observed by the railroad companies. Holding the railroad companies to strict compliance with all these statutory provisions, and enforcing obedience to all these provisions, tends, as observed by Commissioner Cooley in Re Chicago, St. P. & K. C. Ry. Co., 2 Int. Com. Rep. 137, 2 I. C. C. 231, 261 (1888), to both reasonableness and equality of rate, as contemplated by the Interstate Commerce Act." Under the amendments of 1906, the Commission is given the power to make rates. See Chapter xxxiv.

§ 1040. Indication of basis for proper rate.

But though it cannot prescribe rates, the Commission may after investigation find a particular rate to be unlawful, and prohibit the exaction of that rate, or find the time allowed for loading or unloading unlawful or, in other words, unreasonably small, and forbid the charging of demurrage at the expiration of that time and before the expiration of a reasonable time. Pennsylvania Millers' State Asso. v. Philadelphia & R. R., 8 Int. Com. Rep. 531 (1900). So it may require a carrier to desist from enforcing a classification of specified articles higher than the classification, which upon the facts is found to be lawful. This is not pre

scribing a rate for the future. Classification determines the relation of rates as between commodities, not the rate itself, and when a commodity

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