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lation, or practice, but not for a longer period than one hundred and twenty days beyond the time when it would otherwise go into effect; and after full hearing, whether completed before or after the rate, fare, charge, classification, regulation, or practice goes into effect, the Commission may make such order with reference thereto as would be proper in a proceeding initiated after it had become effective. If any such hearing cannot be concluded within the period of suspension, as above stated, the Commission may extend the time of suspension for a further period not exceeding thirty days, and if the proceeding has not been concluded and an order made at the expiration of such thirty days, the proposed change of rate, fare, charge, classification, regulation, or practice shall go into effect at the end of such period, but, in case of a proposed increased rates or charge for or in respect to the transportation of property, the Commission may by order require the interested carrier or carriers to keep accurate account in detail of all amounts received by reason of such increase, specifying by whom and in whose behalf such amounts are paid, and upon completion of the hearing and decision may by further order require the interested carrier or carriers to refund, with interest, to the persons in whose behalf such amounts were paid such portion of such increased rates or charges as by its decision shall be found not justified.

First part of paragraph 7 of section 15 as amended by Transportation Act 1920 section 418.

The Hoke Smith Amendment approved August 9, 1917, Comp. Stat. 1919, Sec. 8583 read: "Provided, further, until January first, nineteen hundred and twenty, no increased rate, fare or charge, or classification shall be filed except after approval thereof has been secured from the Commission. Such approval may, in the discretion of the Commission, be given without formal hearing, and in such case shall not affect any subsequent proceeding relative to such rate, fare. charge, or classification. (24 Stat. 384. 34 Stat. 589. 36 Stat. 551, 40 Stat. 272.) This amendment was not continued by 1920 act. The former statute read:

Whenever there shall be filed with the Commission any schedule stating a new individual or joint rate, fare, or charge.

or any new individual or joint classification, or any new individual or joint regulation or practice affecting any rate, fare, or charge, the Commission shall have, and it is hereby given, authority, either upon complaint or upon its own initiative without complaint, at once, and if it so orders, without answer or other formal pleading by the interested carrier or carriers, but upon reasonable notice, to enter upon a hearing concerning the propriety of such rate, fare, charge, classification, regulation, or practice; and pending such hearing and the decision thereon the Commission upon filing with such schedule and delivering to the carrier or carriers affected thereby a statement in writing of its reasons for such suspension may suspend the operation of such schedule and defer the use of such fare, rate, charge, classification, regulation, or practice, but not for a longer period than one hundred and twenty days beyond the time when such rate, fare, charge, classification, regulation, or practice would otherwise go into effect; and after full hearing, whether completed before or after the rate, fare, charge, classification, regulation, or practice goes into effect, the Commission may make such order in reference to such rate, fare, charge, classification, regulation, or practice as would be proper in a proceeding initiated after the rate, fare, charge, classification, regulation, or practice had become effective: Provided, That if any such hearing cannot be concluded within the period of suspension, as above stated, the Interstate Commerce Commission may, in its discretion, extend the time of suspension for a further period not exceeding six months.

This is a new provision enacted by the amendment of June 18, 1910, being part of par. 2, Sec. 15. The meaning of the section discussed. Advances in Rates, Eastern case, 20 I. C. C. 243, 247, 248; Advances in Rates, Western case, 20 I C. C. 307, 310-314. No power to suspend a rate already ef fective. Rates on Lumber by V. S. & P. Ry. Co., 21 I. C. C. 16. "Propriety" of an advance considered. Advances in Rates on Grain, 21 I. C. C. 22, 24; Wickwire Steel & Wire Co. v. N. Y. C. & H. R. R. Co., 30 I. C. C. 415, 420; Coal Rates from Oak Hills, Colo., 30 I. C. C. 505, 508. The Commission has the power to suspend reductions in rates in any case where such suspension will operate to prevent an ap

parent discrimination. Suspension of Rates on Packing House Products, 21 I. C. C. 68, 70; Coal Rates from Oak Hills, Colo., 30 I. C. C. 505, 508. In the last named case it was held that rates decreased are new rates. Relative Adjustment of Rates Considered. Rates of Cement from Md. to Va., 24 I. C. C. 290; Rates on Barley from California, 24 I. C. C. 664, 669. In re Advance in Class and Commodity Rates, 25 I. C. C. 401; In re Advance in Class Rates, 25 I. C. C. 268; In re Advances on Furniture, 25 I. C. C. 299; Wharton Steel Co. v. D. L. & W. R. R. Co., 25 I. C. C. 303; In re Advances on Oil, 25 I. C. C. 349; In re Advances Knitting Factory Products, 25 I. C. C. 634; In re Advances on Manganese Ore, 25 I. C. C. 663; Philadelphia Veneer & Lumber Co. v. C. R. R. Co. of N. J., 25 I. C. C. 653; Arkansas Fertilizer Co. v. St. L. I. M. & S. Ry. Co., 25 I. C. C. 645; In re Advance on Hay, 25 I. C. C. 680; Taylor v. N. & W. Ry. Co., 25 I. C. C. 613; Wichita Board of Trade v. A. T. & S. F. Ry. Co., 25 I. C. C. 625; Evens & Howard Fire Brick Co. v. St. L. I. M. & S. Ry. Co., 25 I. C. C. 141; In re Advances on Live Stock, 25 I. C. C. 63; In re Advances on Hops, 25 I. C. C. 16; Superior Commercial Club v. G. N. Ry. Co., 25 I. C. C. 342. But when the proposed increase does not change the adjustment the relation not determined. Grain Rates in C. F. A. Territory, 28 I. C. C. 549, 557. Proposed rates may be suspended when they create unlawful discrimination. Wickwire Steel Co. v. N. Y. C. & H. R. R. Co., 30 I. C. C. 415, 420. The Commission held to have power to cancel a tariff which "affected a practice and a rate." A. T. & S. F. R. Co. v. U. S., "Precooling Case," 232 U. S. 199, 58 L. Ed. 568, 34 Sup. Ct. 291, affirming same styled case, 204 Fed. 647, Op. Com. Ct. No. 41, p. 627. For report of the Commission see Arlington Heights Fruit Exchange v. S. P. Co., 20 I. C. C. 106. Suspension Regulations Relating to Precooling, 23 I. C. C. 267. The "propriety" of a rate is in issue where proposed increased rates are under investigation, Wickwire case supra and Transcontinental Commodity Rates, 32 I. C. C. 449. Whether the existence of lower intrastate rates should be a sufficient reason to refuse increased rates otherwise just and reasonable is an unsettled question. The practice of the Commission has been to presume that state rates will be ad

justed and if not the question should properly be determined on a formal complaint.

Rates on poultry in Western Trunk Line Territory, 32 I. C. C. 380; Five Per Cent case, 31 I. C. C. 355; Corp. Com. of Okla. v. A. T. & S. F. R. Co., 31 I. C. C. 532, 540, 541; Rates on Beer and Other Malt Products, 31 I. C. C. 544. Dissenting Opin. Western Advance Rate case, 35 I. C. C. 668 et seq.

Seemingly applying a contrary principle, see Class Rates between Stations in La., 33 I. C. C. 302; Western Rate Advance Case 1915, 35 I. C. C. 497; Live Stock Rates from Colo., 35 I. C. C. 682.

§ 399. Burden of Proof to Justify Rates Increased after Jan. 1, 1910.-At any hearing involving a rate, fare, or charge increased after January 1, 1910, or of a rate, fare, or charge sought to be increased after the passage of this Act, the burden of proof to show that the increased rate, fare, or charge, or proposed increased rate, fare, or charge, is just and reasonable shall be upon the carrier, and the Commission shall give to the hearing and decision of such questions preference over all other questions pending before it and decide the same as speedily as possible.

Last part of paragraph 7 section 15 as amended by Transportation Act 1920 section 418. The former section read:

At any hearing involving a rate increased after January first, nineteen hundred and ten, or of a rate sought to be increased after the passage of this act, the burden of proof to show that the increased rate or proposed increased rate is just and reasonable shall be upon the common carrier, and the Commission shall give to the hearing and decision of such questions preference over all other questions pending before it and decide the same as speedily as possible.

Part of Paragraph 2 Section 15 added by amendment of June 18, 1910.

Prior to this amendment the Commission had held with more or less definiteness that a rate long in existence was presumed to be reasonable, Sec. 102 ante. This amendment is discussed by the Commission in Advance in Rates-Eastern case, 20 I. C. C. 243. Advances in Rates-Western case, 20

I. C. C. 307, 314, 315, 316. At p. 315 of the report in the last named proceeding the Commission held that "burden of proof" did not have the same technical meaning given the phrase in the courts of law, and the Commission said: "In accepting this theory, therefore, it is not within belief that Congress intended by the language now under consideration to convert this Commission into a tribunal which should merely determine as between two sides the preponderance of evidence and base its decisions upon technical and somewhat archaic rules of evidence." "The railroad must assume to prove to his Commission that the new and the increased rates are within the words of description and limitation used in the act; that is, that they are just and reasonable. And to say that they must prove this is to say that they must satisfy our minds of this fact."

General adjustment left to the carrier when rates proposed to be increased were cancelled. Advances in Rate on Grain, 21 I. C. C. 22, 35. When no testimony is offered burden not met. Rates for Transportation of Locomotives, 21 I. C. C. 103, 111. Proof of increased cost of transportation should be directed to the particular transportation affected by the proposed increase. Victor Mfg. Co. v. S. Ry. Co., 21 I. C. C. 222, 226. Advance of Commodity Rate under claim that such rate was not properly proportioned to all rates considered. U. S. Leather Co. v. So. Ry. Co., 21 I. C. C. 323, 325. Cancellation of a through rate, leaving a combination of locals higher than the through rate puts the burden on the carrier. Rates on Lumber and Other Forest Products, 21 I. C. C. 455. Suspensions of Advances on Soft Coal, 23 I. C. C. 518, 519. Burden on carrier to justify increased carload minimum. Advance in Rates on Potatoes, 23 I. C. C. 69. Statement made that admission of complainant relieved defendant of burden of proof. Wisconsin State Millers' Assn. v. C. M. & St. P. Ry. Co., 23 I. C. C. 494, 495. Refusal of one carrier to accept. for a through haul less than its full locals fails to meet the burden of proof. Advance in Rates on Ceme: t from Md. to Va., 24 I. C. C. 290, 291. Discriminatory increased charges cancelled. Switching Ice in Chicago, 24 I. C. C. 660. That an advance is of not "great consequence" does not relieve from the statute. Rates on Corn, Oats and Other Feed, 25

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