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1 jn said court, duly certified, a complete copy of its entire record, including peti2 tions, answers, testimony, report, and opinion of the Commission, order, and all 3 other papers whatsoever in connection therewith. The court shall thereupon 4 proceed to hear the same either upon the petition, record, and testimony returned 5 by the Commission; or, in its discretion, may, upon the application of either 6 party, and in such manner as it shall direct, cause additional testimony to be 7 taken; and thereupon if said court shall be of the opinion that said order was 8 made under some error of law, or is, upon the facts, unjust or unreasonable, it 9 shall suspend or revoke the same by appropriate decree; otherwise said order 10 shall be affirmed. Any party to the cause may appeal to the Supreme Court of 11 the United States within thirty days of the rendition of any final decree of said 12 court, which court shall proceed to hear and determine the same in due course 13 without regard to whether the one year hereinbefore limited for the continu14 ance of said order shall have expired or not. 15 SEC. 2. That it shall be lawful for any two or more common carriers to 16 arrange between and among themselves for the establishment or maintenance of 17 rates. It shall also be lawful for such carriers to agree, by contract in writing, 18 filed with the Interstate Commerce Commission, upon the division of their 19 traffic or earnings, or both; and upon the complaint by petition or any party 20 interested that any such contract so filed unjustly and unlawfully affects any 21 person or persons, community or communities, it shall be the duty of the Com22 mission to promptly investigate the matters so complained of in such manner 23 and by such means as it shall deem proper, and make report in writing with 24 respect thereto, which report shall include the findings of fact upon which the 25 conclusions of the Commission are based, and be entered of record. If such 26 findings sustain in any material particular the allegations of said petition, then it 27 shall be the duty of said Commission to make an order either annulling said 28 contract after thirty days' notice, or directing that the said contract and the 29 practices thereunder, in the respects found to be unjust and unlawful, shall be 30 changed in the manner prescribed in the order. Should such requirements of 31 the Commission as to changes be not observed by the carriers, and written 32 acceptance thereof be not filed with the Commission within thirty days after 33 notice, then said contract filed as aforesaid shall be annulled. Any such order 34 shall be subject to all the provisions of section one of this act with respect to 35 definitive orders made upon petitions presented pursuant to section thirteen of
an act entitled “An act to regulate commerce,” approved February fourth, 37 eighteen hundred and eighty-seven. 38 Sec. 3. That if any party bound thereby shall refuse or neglect to obey or per39 form any order of the Commission mentioned in section one or secton two of this 40 act at any time while the same is in force as provided by said section, obedience 41 and performance thereof shall be summarily enforced by writ of injunction or 42 other proper process, mandatory or otherwise, which shall be issued by any cir43 cuit court of the United States upon petition of said Commission, accompanied by a 44 certified copy of the order alleged to be violated, and evidence of the violation 45 alleged; and in addition thereto the offending party shall be subject to a penalty
1 of ten thousand dollars, which, together with costs of suit, shall be recoverable 2 by said Commission by action of debt in any circuit court of the United States, 3 and when so recovered shall be for the use of the United States. Where, how4 ever, any order made by the Commission shall involve the rate on traffic passing 5 in part over the line or lines of any railroad company operating in any foreign 6 country, and passing in part over lines of railroad companies operating within 7 the United States, or shall involve the usages of such foreign road with respect 8 to such traffic, then in case such order shall not be observed it shall be lawfựl 9 for the Commission, or the court having jurisdiction, in addition to the other 10 remedies herein provided, to enforce the order against the traffic so passing in 11 part through a foreign country and in part through the United States, by suspen12 sion of the movement thereof within the United States, save upon the condition 13 that the terms of the order shall be complied with. 14 Sec. 4. That anything done or omitted to be done by a corporation common 15 carrier, subject to the act to regulate commerce, which, if done or omitted by 16 any lessee, trustee, receiver, officer, agent, or representative of such corporation, 17 would constitute a misdemeanor under said act, shall be held to be a misde18 meanor by such corporation, and upon conviction thereof it shall be subject to 19 Jike penalties as are prescribed in said act with reference to individuals, except 20 as such penalties are herein changed. The willful failure upon the part of any 21 carrier subject to said act to file and publish the tariffs of rates and charges as 22 required by said act, or strictly to observe such tariffs until changed according 23 to law, shall be a misdemeanor, and upon conviction thereof the individual or 24 corporation offending shall be subject to a fine not less than one thousand dol25 lars nor more than twenty thousand dollars for each offense; and the willful 26 complicity upon the part of any person owning or interested in the traffic to 27 which any other rate shall be given than those prescribed in said tariffs shall 28 likewise constitute a misdemeanor, and, upon conviction, shall subject the 29 offender to the like penalties last hereinbefore prescribed with reference to the 30 carrier. In all convictions occurring after the passage of this act, for offenses 31 under said act to regulate commerce (whether committed before or after the 32 passage of this act), or for offenses under this section, no penalty shall be 33 imposed on the convicted party other than the fine prescribed by law, imprison34 ment wherever now prescribed as part of the penalty being hereby abolished. 35 Sec. 5. That in any proceeding for the enforcement of the provisions of the 36 statutes relating to interstate commerce, whether such proceedings be instituted 37 before the Interstate Commerce Commission or be commenced originally in any 38 circuit court of the United States, it shall be lawful to include as parties all per39 sons, in addition to the carrier interested in or affected by the rate, regulation, 40 or practice under consideration, and inquiries, investigations, orders, and decrees 41 may be made with reference to and against such additional parties in the same 42 manner, to the same extent and subject to the same provisions, as is or shall be 43 authorized by law with respect to carriers. 44 SEC. 6. That whenever the Interstate Commerce Commission shall have reason45 able ground for belief that any common carrier is engaged in the carriage of 1 passenger or freight traffic between given points at less than the published rates 2 on file, it shall be authorized to present a petition to the circuit court of the 3 United States having jurisdiction of the parties, alleging such practice ; where4 upon it shall be the duty of the court to summarily inquire into the circum5 stances, and, upon being satisfied of the truth of the allegation, to enforce an 6 observance of the published tariffs by proper orders and process, which said 7 orders and process may be enforceable as well against the parties interested in 8 the traffic as against the carrier. 9 SEC. 7. That all acts and parts of acts in conflict with the provisions of this 10 act are hereby repealed, but such repeal shall not affect causes now pending nor 11 rights which have already accrued, but such causes shall be prosecuted to a con12 clusion and such rights enforced in a manner heretofore provided by law. 13 SEC. 8. That this act shall take effect from its passage.
THE ELKINS BILL WITH PROPOSED AMENDMENTS PENDING BEFORE THE
(S. 3521, Fifty-seventh Congress, first session. (Committee print.)]
[Proposed amendments printed in italics. Omit the words in brackets.]
A BILL To enlarge the jurisdiction and powers of the Interstate Commerce Commission.
1 Be it enacted by the Senate and House of Representatives of the United States of 2 America in Congress asseinbled, That any definite order made by the Interstate 3 Commerce Commission after hearing and determination had on any petition here4 after presented pursuant to section thirteen of an act entitled “An act to regulate 5 commerce,” approved February fourth, eighteen hundred and eighty-seven, 6 declaring any existing rate or rates in said petition complained of, for the carriage 7 of any given article or articles, person or persons, or any regulation or practice 8 affecting such rates facilities afforded in connection therewith, to be unjustly discrimi9 native or unreasonable, and declaring what rate or rates, regulation, or practice 10 affecting such rate or rates for the future, in substitution, would be just and rea11 sonable, shall become operative and be observed by the party or parties against 12 whom the same shall be made within thirty days after notice, or in case of 13. proceeding for review as hereinafter provided, then within forty days after 14 notice; but the same may at any time be modified, suspended, or revoked by 15 the Commission, but shall in no case continue in force (and be obeyed] beyond 16 the period of one year from the day the same becomes originally operative and 17. is observed[. If such substitute rate shall be a joint one, and the carriers 18 parties to that rate shall be unable to agree upon the apportionment thereof 19 among themselves within ten days after any such order shall become operative, 20 then the Commission may declare as part of its order what would be a just and 21 reasonable proportion of such rate to be received by each carrier.]: Provided, 22 however, That if any carrier shall thereafter see fit to increase the rate or rates (or change 23 the regulation or practice) established by such order, it shall file thirty days' previous 24 notice thereof with the Commission in the manner provided by law. When the rate 25 substituted by the Commission as hereinbefore provided is a joint rate, and the carriers 26 parties thereto fail to agree upon the apportionment thereof among themselves within 27 twenty days after notice of such order, the Commission may issue a supplemental order 28 declaring the portion of such joint rate to be received by each carrier party thereto, 29 which order shall be observed by such carriers. When the order of the Commission 30 prescribes the just relation of rates, to or from common points on the lines of the several 31 carriers parties to the proceeding, and such carriers fail to notify the Commission within 32 twenty days after notice of such order that they have agreed among themselves as to the 1 changes to be made to effect compliance therewith, the Commission may issue a supple2 mental order prescribing the rates to be charged, to or from such common points, by 3 either or all the parties to the proceeding, which order shall be observed by the carriers 4 concerned. [Such] Every order as to its justness, reasonableness, and lawful5 ness, whether in respect to the rate or rates, regulation [of] or practice com6 plained of, or that prescribed in substitution therefor, or the apportionment of a 7 joint rate or the relation of rates, or otherwise, shall be reviewable by any circuit 8 court of the United States for any district through which any portion of the road 9 of the carrier shall run, to which a petition filed on its equity side shall be first 10 presented by any party interested. [Pending such review the said order shall 11 be suspended unless upon application to and hearing by said court it shall be 12 otherwise ordered; said court and the Supreme Court in case of appeal may, at 13 any time, upon application and notice, suspend or revoke the said order. The sev14 eral circuit courts of the United States are hereby invested with full jurisdiction 15 and powers in the premises, including the issuance and pursuit of the necessary 16 process to secure appearance of the parties. The court shall also direct notice to 17 the Commission of the filing of said petition; whereupon it shall be the duty of 18 the Commission, within ten days after the receipt thereof, to cause to be filed in 19 said court, duly certified, a complete copy of its entire record, including peti20 tions, answers, testimony, report, and opinion of the Commission, order, and all 21 other papers whatsoever in connection therewith.] It shall be the duty of the 22 Commission, within ten days after notice, to cause to be filed in any court to which such 23 petition shall have been presented a duly certified copy of its entire record in connection 24 with the order to be reviewed, including petition, answers, testimony, report and 25 opinion of the Commission, order, and all other papers whatsoever in connection there26 with. The court shall thereupon proceed to hear the same either upon the peti27 tion, record, and testimony returned by the Commission; or, in its discretion, 28 may, upon the application of either party, and in such manner as it shall direct, 29 cause additional testimony to be taken; and thereupon if after hearing said court 30 shall be of the opinion that said order was made under some error of law, or is,
upon the facts, unjust or unreasonable, it shall suspend or revoke the same by 32 appropriate decree; otherwise said order shall be affirmed. Pending such review, 33 however, the court may, upon application and hearing, suspend said order. Any party 34 to the cause may [appeal to the Supreme Court of the United States] within 35 thirty days of the rendition of any final decree of said court appeal to the Supreme 36 Court of the United States, which court shall proceed to hear and determine (the
same in due course without regard to whether the one year hereinbefore limited 38 for the continuance of said order shall have expired or not.] such appeal. The 39 said several courts of the United States shall be and are vested with full jurisdiction and 40 all necessary powers in the premises. The case in both the circuit caurt and the Supreme 41 Court shall have precedence over all except criminal cases. But such appeal shall not 42 operate to stay or supersede the order of the circuit court, or the execution of any writ
or process thereon. 44 The defense in all such proceedings for review shall be undertaken by the United 45 States district attorney for the district wherein the action is brought, under the direction