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sion without evidence or contrary to the legal effect of undisputed evidence is void.” In discussing the general question Mr. Justice Lamar, delivering the opinion of the Supreme Court said: “The reasonableness of rates cannot be proved by categorical answers,” and after stating facts considered by the Commission, he continued, “with that sort of evidence before them, rate experts of acknowledged ability and fairness, and each independently of the other, may not have reached identically the same conclusion. We do not know whether the results would have been approximately the same. For there is no possibility of solving the question as though it were a mathematical problem to which there could only be one correct answer. Still there was in this mass of facts that, out of which experts could have named a rate. The law makes the Commission's findings on such facts con

clusive." 124

126

In the Precooling case, Mr. Justice Lamar, after stating the power of the Commission, said: “All these matters are committed to the decision of the administrative body, which in each instance is required to fix reasonable rates, and establish reasonable practices. The courts have not been vested with any such power. They cannot make rates. They cannot interfere with rates fixed or practices established by the Commission unless it is made plainly to appear that those ordered are void.”

The Supreme Court in applying the rule announced by Mr. Justice Lamar emphasized the principle in this language: “A tribunal such as the Interstate Commerce Commission, expert in matters of rate regulation, may be presumed to draw inferences that are not obvious to others. 120

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123. Atchison, T. & S. Ry. Co. v. Int. Com. Com. and the United States, 188 Fed. 229, Opinion Com. Ct. No. 2, p. 3.

124. Int. Com. Com. v. Union Pac. R. Co., 222 U. S. 541, 549, 56 L. Ed. 308, 32 Sup. Ct. 108.

125. Atchison, T. & S. Ry. Co. v. United States, 232 U. S. 199, 58 L. Ed. 568, 34 Sup. Ct. 291, af

firming same styled case, 204 Fed. 647, Opinion Com. Ct. No. 41, p. 627, and citing Int. Com. Com. v. Union Pac. R. Co., 222 U. S. 547 56 L. Ed. 311, 32 Sup. Ct. 108.

126. O'Keefe v. United States, 240 U. S. 290, 60 L. Ed. 651, 36 Sup. Ct. 313. Nashville Grain Exchange v. United States, 234 Fed. 699, 702.

§ 316. Lack of Full Hearing.-The language of the statute requires a full hearing. It was contended on behalf of the Commission that if after a hearing the Commission was of the opinion that a particular rate was unreasonable, its order based on such opinion was conclusive. Answering this contention, Mr. Justice Lamar, delivering the opinion of the Supreme Court said:

“But the statute gave the right to a full hearing, and that conferred the privilege of introducing testimony, and at the same time imposed the duty of deciding in accordance with the facts proved. A finding without evidence is arbitrary and baseless. And if the Government's contention is correct, it would mean that the Commission had a power possessed by no other officer, administrative body, or tribunal under our Government. It would mean that where rights depended upon facts, the Commission could disregard all rules of evidence, and capriciously make findings by adminis. trative fiat. Such authority, however beneficently exercised in one case, could be injuriously exerted in another; is inconsistent with rational justice, and comes under the Constitution's condemnation of all arbitrary exercise of power.

"In the comparatively few cases in which such questions have arisen it has been distinctly recognized that administrative orders, quasi-judicial in character, are void if a hearing was denied; if that granted was inadequate or manifestly unfair; if the finding was contrary to the 'indisputable character of the evidence

or if the facts do not as a matter of law support the order made.' ” 127

127. Int. Com. Com. v. Louisville & N. R. Co., 227 U. S. 88, 57 L. Ed. 431, 33 Sup. Ct. 185, cit. ing Int. Com. Com. v. Union Pac. R. Co., 222 U. S. 541, 56 L. Ed. 311, 32 Sup. Ct. 108; Tang Tun v. Edsell, 223 U. S. 673, 681, 56 L. Ed. 606, 32 Sup. Ct. 359; Chin Yoh v. U. S., 208 U. S. 8, 13, 52 L. Ed. 369, 28 Sup. Ct. 201; Low Wah Suey v. Backus, 225 U. S. 460, 468, 56 L. Ed. 1165, 32 Sup. Ct. 734;

Zakonite v. Wolf, 226 U. S. 272, 56 L. Ed. 218, 33 Sup. Ct. 31; United States v. B. & O. S. W. R. R., 226 U. S. 14, 57 L. Ed. 104, 33 Sup. Ct. 5, 9; Atlantic C. L. R. Co. v. North Carolina Corp. Com., 206 U. S. 1, 20, 51 L. Ed. 933, 27 Sup. Ct. 585; Wisconsin, M. & P. R. Co. v. Jacobson, 179 U. S. 287, 301, 45 L. Ed. 194, 21 Sup. Ct. 115.

§ 317. Awards of Damages.-Section 8 of the act gives the person injured the right to recover "the full amount of damages sustained," and the Commission having made an award of damages, section 16 provides :

“If a carrier does not comply with an order for the payment of money within the time limit in such order, the complainant, or any person for whose benefit such order was made, may file in the circuit court of the United States for the district in which he resides or in which is located the principal operating office of the carrier, or through which the read of the carriers runs, or in any state court of general jurisdiction having jurisdiction of the parties, a petition setting forth briefly the causes for which he claims damages, and the order of the Commission in the premises. Such suit in the circuit court of the United States shall proceed in all respects like other civil suits for damages, except that on the trial of such suit the findings and order of the Commission shall be prima facie evidence of the facts therein stated.

If the petitioner shall finally prevail he shall be allowed a reasonable attorney's fee, to be taxed and collected as a part of the costs of the suit."

Orders making an award of damages must be lawful, and such orders are not binding if the Commission has violated the Constitution, exceeded its jurisdiction or acted without evidence or contrary to the undisputed evidence.128 The circuit court of appeals held that an order of the Commission awarding damages which failed to prescribe a rate for the future was void." This decision was reversed by the Supreme Court which held that the questions could be considered separately or together, for, said the court, “Award

129

128. Western New York & P. R. Co. v. Penn Refining Co., 137 Fed. 343, 70 C. C. A. 23, affirmed, Penn Refining Co. v. Western N. Y. & P. Ry. Co., 208 U. S. 208, 52 L. Ed. 456, 28 Sup. Ct. 268. Wrong basis used, Penn R. Co. v. Jacoby, 242 U. S. 89, 61 L. Ed. 165, 37 Sup. Ct. 49; Clark Bros. Coal Mining Co. v. Penn. R. Co., 238 Fed. 642, Atchison T. & S. F.

Ry. Co., v. Spiller, 246 Fed. 1, 23, 158 C. C. A. 227, 249 U. S. 677, 63 L. Ed. 39 Sup. Ct. But the courts are not technical in looking into the procedure befor the Commission, Missouri P. Ry. Co. v. Ferguson Saw Mill Co., 235 Fed. 474, 149 C. C. A. 20.

129. Denver & R. G. R. Co. v. Baer Bros. Mer. Co., 187 Fed. 485, 109 C. C. A. 337.

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ing reparation for the past and fixing rates for the future involve the determination of matters essentially different. One is in its nature private and the other public. One is made by the Commission in its quasi-judicial capacity to measure past injuries sustained by a private shipper; the other in its quasi-legislative capacity, to prevent future injury to the public.” 1

The award is not a judgment but is prima facie evidence of the facts therein stated, and the finding that a rate exacted is unreasonable and that the plaintiff has suffered damage, does not preclude the defendant from showing in court facts constituting a defense.'31 Interest may be allowed by the Commission in fixing the amount of an award, and the courts in suits thereon may allow attorneys fees for services before the courts.

132

130. Baer Bros. Mercantile Co. v. Denver & R. G. R. Co., 233 U. S. 479, 58 L. Ed. 1055, 34 Sup. Ct. 641, citing Tex. & Pac. Ry. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 51 L. Ed. 553, 27 Sup. Ct. 350; Robinson V. Baltimore & O. R. Co., 222 U. S. 506, 56 L. Ed. 288, 32 Sup. Ct. 114.

131. Meeker v. Lehigh Valley R. Co., 236 U. S. 412, 59 L. Ed. 644, 35 Sup. Ct. 328; reversing Circuit Court of Appeals, Lehigh Valley R. Co. v. Meeker, 211 Fed. 785; Meeker v. Lehigh Valley R. Co., 236 U. S. 434, 59 L. Ed. 659, 35 Sup. Ct. 328; Mills v. Lehigh Valley R. Co., 238 U. S. 473, 59 L. Ed. 1414, 35 Sup. Ct. 888, reversing Circuit Court of Appeals in Lehigh Valley R. Co. v. Clark, 207 Fed. 717, 125 C. C. A. 235. See related questions in Penn R. Co. v. International Coal Co., 230 U. S. 184, 57 L. Ed. 1446, 33 Sup. Ct. 893; Penn. R. Co. v. Clark Bros. Coal Mining Co., 238 U. S. 456, 59 L. Ed. 1406, 35 Sup. Ct. 896; Penn. R. Co. v. Clark Bros.

Coal Mining Co., 241 Pa. 515, 88
Atl. 754.

132. Cases Note 95, supra, and Denver & R. G. R. Co. v. Baer Bros. Mer. Co., 209 Fed. 577, 126 C. C. A. 399. The history of this case is interesting. Baer Bros. Mercantile Co. brought suit in the United States Court, but upon the decision of the Supreme Court in Texas & Pacific Ry. Co. V. Abilene Cotton Oil Co., 204 U. S. 426, 51 L. Ed. 553, 27 Sup. Ct. 350, the suit was voluntarily dismissed. Complaint was then filed with the Commission, Baer Bros. Mercantile Co. v. M. Pac. Ry. Co., 13 I. C. C. 329, upon which an order awarding damages was entered. Upon this order the District Court entered a judg. ment and allowed attorney's fees. This decision and decree were reversed by the Circuit Court of Appeals, Denver & R. G. R. Co. V. Baer Bros. Mercantile Co., 187 Fed. 485, 109 C. C. A. 337. The Court of Appeals was reversed and the District Court affirmed

133

134

135

The Commission having once acted, declaring a particular rate unlawful, it was held unnecessary for an injured shipper again to present the same question to the Commission before electing to sue directly in a Federal court to recover his damages.

The reasonableness of a rate is not involved in a suit on an award of damages made by the Commission and based upon a charge in excess of a rate legally filed with the Commission, and on such an award attorneys fees may be allowed by the court.

It would seem, therefore, that when the Commission follows the authority given in the statute, the power of attorney under which it acts, the effect given its findings should be those stated in Cincinnati, H. & D. R. Co. v. Int. Com. Com., where the Supreme Court says:

“The statute gives prima facie effect to the findings of the Commission, and, when those findings are concurred in by the circuit court, we think they should not be interfered with unless the record established that clear and unmistakable error has been committed."

§ 318. Awards of Damages--Parties and Procedure.-In suits on orders of the Commission awarding damages, all parties in whose favor the Commission may have made an award by a single order may be joined as plaintiffs, and all of the carriers parties to such order awarding such damages may be joined as defendants, and such suit may be maintained by such joint plaintiffs and against such joint defendants in any district where any one of such joint plaintiff's could maintain such suit against any one of such joint de

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by the Supreme Court: Baer Bros. Mer. Co. V. Denver & R. G. R. Co., note 94, supra, and see Baer Bros. Mer. Co. v. M0. Pac. Ry. Co., 17 I. C. C. 225. The petition to set aside this order was dismissed, a preliminary injuction having been denied, Denver & R. G. R. Co. v. Int. Com. Com., 195 Fed. 968, Opinion Com. Ct. No. 35, p. 401.

133. National Pole Co. v. Chicago & M. 0. Ry. Co., 211 Fed. 65, See also Note 131, supra.

134. Chicago B. & Q. R. Co. v. Feintuck, 191 Fed. 482, 112 C. C. A. 126.

135. Cincinnati, H. & D. R. Co. v. Int. Com. Com., 206 U. S. 142, 51 L. Ed. 995, 27 Sup. Ct. 648.

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