carrier and various shippers of coal and coke for furnishing cars in proportion to the number of coke ovens operated. United States v. Norfolk & W. Ry., 138 Fed. 849 (1905).

So where the court is asked to grant a writ of mandamus to compel a fair distribution of cars, it will not be granted unless unjust discrimination is alleged and proved; but if it is proved the writ will be granted. United States v. Norfolk & W. Ry., 109 Fed. 831 (1901), 143 Fed. 266 (1906).

§ 1096. Action for damages.

While the remedy by way of damages for unlawful rates is utterly inadequate and inconsistent, it is apparently the remedy prescribed by the Act to Regulate Commerce, and the only remedy which the shipper has against the exaction of an unreasonable interstate rate. McGrew v. Missouri P. Ry., 8 I. C. C. Rep. 630 (1901). The pendency of a suit before the federal courts bars proceedings before the Commission; but a suit in the State court does not have that effect. Gallogly v. Cincinnati, H. & D. Ry., 11 I. C. C. Rep. 1 (1905). The measure of damages, where unjust discrimination is found, is the difference paid by the plaintiff and the favored shippers for like services. Junod v. Chicago & N. W. Ry., 47 Fed. 290 (1891). For form of complaint, see Kimavey v. Terminal Ry. Assoc., 81 Fed. 802 (1897). Since the remedy is given only to an injured party, a plaintiff in order to recover must show not only the wrong of the carrier but that the wrong has operated to his injury. Parsons v. Chicago & N. W. Ry., 167 U. S. 447, 42 L. Ed. 232, 17 Sup. Ct. 887 (1897).

Section 12 of the act is constitutional and valid, so far as it authorizes or requires the circuit courts of the United States to use their process in aid of inquiries before the Interstate Commerce Commission. Interstate Commerce Commission v. Brimson, 154 U. S. 447, 38 L. Ed. 104, 14 Sup. Ct. 1125, 4 Int. Com. Rep. 545 (1894).

An action by the district attorney may be maintained in the name of the United States. United States v. Missouri Pac. R. R., 65 Fed. 903, 5 Int. Com. Rep. 106 (1894). And the Commission need not first investigate the case. Ibid.

1097. Criminal prosecution.

3

It was said in United States v. Michigan Central R. R., Fed. Int. Com. Rep. 287 (1890), that a railroad company cannot be indicted for violation of the act; but this seems to be a mistake. United States v. Cleveland, C. & S. R. R., Fed. 3 Int. Com. Rep. 290 (1890). But a carrier which has conformed to the ruling of the Commission should not be prosecuted for alleged violation of law in that respect, which occurred before such ruling was made and under a construction of the law then

,

approved by the carrier's counsel. Slater v. Northern P. R. R., 2 Int. Com. Rep. 243 (1888). An indictment will lie against any officer, director, agent, or employe of a carrier who aids and abets in violation of the Interstate Commerce Law, as well as against the carrier, such officers and employes having knowledge that they are engaged in an illegal act. United States v. Cleveland, C. & S. R. R., 3 Int. Com. Rep. 290 (1890); United States v. Mellen, 53 Fed. 229, 4 Int. Com. Rep. 247 (1892); United States v. Howell, 56 Fed. 21, 4 Int. Com. Rep. 818 (1892). The proof, as in all criminal cases, should be clear and leave no reasonable ground for doubt as to their guilty knowledge of the illegality of the act, and men who occupy merely clerical positions, who are only the instruments which carry out an unlawful action or contract made by their superior officers, which they do not concoct, should not be punished for violation of the Interstate Commerce Act, except where the proof of guilty knowledge and participation is clear. United States v. Michigan Central R. R., 43 Fed. 26, 3 Int. Com. Rep. 287 (1890). So collecting and receiving freight charges does not subject one who had nothing to do with fixing the rates, to indictment under the long and short haul clause of the Interstate Commerce Act, although the rates are within the prohibitions of that Act. United States v. Mellen, 53 Fed. 229, 4 Int. Com. Rep. 247 (1892).

But one overt act need be proved to sustain an indictment for conspiring to violate the United States Act of March 2, 1889, against obtaining transportation for property over railroads at less than regular rates. United States v. Howell, 156 Fed. 21, 4 Int. Com. Rep. 818 (1892). When an agent of a railroad is prosecuted under the Interstate Commerce Act, it is not necessary either to allege or prove that the particular unlawful act complained of was done under authority conferred by its principal or by its direction; it is sufficient to show that the accused was in fact an agent of a railroad subject to the act, and that the wrong was commited under color of his office or agency. United States v. Tozer, 39 Fed. 904, 2 Int. Com. Rep. 422 (1889). An indictment against an express company for violation of the Interstate Commerce Act, inasmuch as the liability of such companies under the act must depend on the manner in which the business is conducted,-as, for instance, where it is conducted by railroad companies, must show by proper averment the facts to bring the case within the law. United States v. Morsman, 42 Fed. 448, 3 Int. Com. Rep. 112 (1890).

A conviction for criminal violation of the section of the Interstate Commerce Act which prohibits undue or unreasonable preferences or advan tages cannot be sustained upon the finding of a jury that a certain charge was an unreasonable preference, if no standard of comparison is established by which such unreasonableness is shown with definiteness and certainty. Tozer v. United States, 52 Fed. 917, 4 Int. Com. Rep. 245 (1892). The objection that an indictment under the long and short haul clause of

the Interstate Commerce Act is an attempt by the government to interfere with the revenues of the railroad contrary to the terms of the contract under which it was built cannot be raised upon a motion to quash. United States v. Mellen, 53 Fed. 229, 4 Int. Com. Rep. 247 (1892).

The venue of the indictment is the place where the illegal act is done. In an indictment for securing transportation at less than legal rates by false billing, the offence is committed where the property is delivered for transportation. Davis v. United States, 104 Fed. 136, 43 C. C. A. 448 (1900).

The form of indictment for various violations of the act was considered in United States v. Tozer, 39 Fed. 904, 2 Int. Com. Rep. 422 (1889). It was there held that an indictment for unjust discrimination, under section 2, need not aver by what particular device the defendant managed to discriminate in favor of a particular shipper; that a count under section 9 is sufficient if it shows with requisite certainty, by any apt language, that the accused has committed an act which gives one shipper or class of shippers an advantage, or subjects others to a disadvantage; that a count under section 3, charging the subjection of a certain locality to an undue prejudice by charging its merchants a higher rate for transporting property to a certain point than was exacted from residents of a certain other locality, must show with precision that the lower rate was for transportation between the same points as the higher rates; that counts under section 2 for "undue and unreasonable preference," and "for undue or unreasonable prejudice or disadvantage," need not allege that the service for which a different rate was charged was rendered "under substantially similar circumstances and conditions,"-those words being found only in section 4, in relation to greater charge for shorter haul; and that a count under section 6, alleging the allowance of a rate less than the established and published rate which was in force on that day," sufficiently negatives the inference that the rate might have been reduced by the carrier without notice, as permitted by that section. For other cases in which the form of indictment was considered, see United States v. Hanley, 71 Fed. 672 (1896); United States v. DeCoursey, 82 Fed. 302 (1897).

1098. Procedure under the Elkins Act,

The provisions of the Elkins Act apply not only to violations of the Interstate Commerce Law subsequent to its enactment, but to every violation. whether previously or subsequently. United States v. Michigan Cent. R. R., 122 Fed. 544 (1903). A suit to enjoin a common carrier from discriminating between localities in violation of the Act to Regulate Commerce could not be brought on behalf of the United States by its law officers at the request of the Interstate Commerce Commission prior to the passage of this act. Such a suit having been brought before the act and a decree granting the relief prayed for having been made in the Circuit

Court, the decree was reversed; but the new remedies given by the act are so far made applicable to prior pending proceedings by section 4 of the act that the cause will be remanded for further procedings consistent with the Act to Regulate Commerce as originally enacted and subsequently amended by the Elkins Act. Missouri Pacific Ry. v. United States, 189 U. S. 274, 47 L. Ed. 811, 23 Sup. Ct. 507 (1903). But as an injunction is issued only against present or threatened acts, none will be issued under these circumstances unless the illegal act is continuing. United States v. Atchison, T. & S. F. Ry., 142 Fed. 176 (1905). For form of a bill under this act, see United States v. Milwaukee R. T. Co., 142 Fed. 247 (1905). Section 3 of the act applies to all discrimination forbidden by law. Interstate Commerce Commission v. Chicago G. W. Ry., 141 Fed. 1003 (1905).

§ 1099. Enforcement of order of the Commission.

The shipper, if reparation is not made, may bring an action at law. This action may be brought by any beneficiary of an order, even if he was not a party to the proceedings before the Commission. Thus shippers whose claims for reparation for damages for wrongful charges for transportation of oil covered by an order of the Interstate Commerce Commission, but who have not been served in the reparation proceedings before the Commission, may, upon failure of the carriers to properly refund excessive charges, proceed on the basis of reparation prescribed on such order to enforce their claims in the courts as provided by law. Independent Ref. Assoc. v. Western N. Y. & P. R. R., 6 I. C. C. Rep. 378 (1895). The better practice, however, at least in a case of any doubt, is for all shippers to file intervening petitions before the Commission and obtain individual orders for reparation, upon which they may proceed in court. Cattle Raisers' Assoc. v. Chicago, B. & Q. R. R., 10 I. C. C. Rep. 83 (1904).

The bona fides of a complaint of discrimination by a carrier cannot be attacked in the Circuit Court by impeaching the good faith of those who in the first instance induced the Interstate Commerce Commission to take action under the provisions of the Interstate Commerce Law for the lodging by any person of complaints with the Commission, and that no complaint shall be dismissed because of the absence of direct damage to the complainant, but that the Commission may institute any inquiry on its own motion, and requiring the Commission, if the law has been violated, to notify the carrier to cease from further violation, and, in case of its refusal, to apply by petition to a Circuit Court in equity to enforce its order. Interstate Commerce Commission v. Detroit, G. H. & M. R. R., 57 Fed. 1011, 4 Int. Com. Rep. 722 (1893).

The common form of proceeding for enforcing the order of the Commission is under the provision giving the Commission the power to apply to the courts. Under this provision of the act the findings of fact of the Commission are not conclusive in proceedings before the court, even if

the court finds that the matter was fully and fairly investigated by the Commission. The court must still independently investigate the whole merits of the controversy and form an independent judgment upon them; and in such investigation the findings of fact made by the Commission are only prima facie evidence, and additional evidence may be introduced. Inter. Com. Comm. v. Alabama Mid. Ry., 168 U. S. 144, 42 L. Ed. 414, 18 Sup. Ct. 45, B. & W. 433 (1897); Kentucky & I. Bridge Co. v. Louisville & N. R. R., 37 Fed. 567, 2 L. R. A. 289, 2 Int. Com. Rep. 351 (1889); Interstate Commerce Commission v. Lehigh Valley R. R., 49 Fed. 177, 3 Int. Com. Rep. 796 (1892); Interstate Commerce Commission v. Atchison, T. & S. F. R. R., 50 Fed. 295, 4 Int. Com. Rep. 323 (1892). The opinion of the Interstate Commerce Commission has not the effect of a judicial determination, and in a proceeding to enforce it the court proceeds to ear the complaint de novo. Shinkle, W. & K. Co. v. Louisville & N. R. R., 62 Fed. 690, 5 Int. Com. Rep. 282 (1894). The conslusions of the Commission are, however, prima facie correct, and in a suit to enforce its orders the burden rests upon the company to show them to be erroneous. Interstate Commerce Commission v. Louisville & N. R. R., 118 Fed. 613 (1902). The mere opinion of the Commission, however, not being a finding of fact, is not admissible in evidence and will not be considered by the court. Western N. Y. & P. R. R. v. Penn. Refining Co., 137 Fed. 343 (1905).

It is not necessary to file with a petition for the enforcement of an order of the Interstate Commerce Commission the transcript of the evidence taken before it, under the statute making the findings of fact of the Commission prima facie evidence of the matter stated; but either party may introduce and use as evidence any competent and relevant testimony taken before the Commission. The court may reject any portion which is irrelevant or incompetent. If any evidence has been taken ex parte in the proceedings before the Commission, the court may require that there shall be full opportunity for cross-examination before it will be received or considered. Interstate Commerce Commission v. Cincinnati, N. 0. & T. P. R. R., 64 Fed. 981, 5 Int. Com. Rep. 131 (1894).

As the findings of fact are not conclusive against the carrier, so they are not conclusive in its favor. Therefore a demurrer will not lie to a petition by the Interstate Commerce Commission to compel a railroad company to desist from exacting unreasonable rates on the ground that the Commission's findings of fact does not support its order if the findings expressly state that the charge made is unreasonable, although the findings may not appeal to the judgment of the court upon the merits. Interstate Commerce Commission v. Chicago, B. & Q. R. R., 94 Fed. 272 (1899).

The enforcement of the order of the Commission alone being within the power of the court, it cannot modify such order. Therefore the court cannot, upon a certificate of the Interstate Commerce Commission that in making an order which the court is asked to enforce the Commission did