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elicit information upon which it may predicate a finding of what will be reasonable or non-prejudicial rates or practices for the future. But where a shipper institutes a suit seeking to have past rates or practices examined so that he might predicate upon the favorable findings that might be made, a claim for damages, is not this quite another matter? And is this not a "suit between private parties," and does not this very phrase appearing in the last line of the quote render the principles quoted inapplicable to the damage case the court was considering?

It is important to note that the hearsay evidence in the Spiller case was not objected to by counsel for the railroads when introduced at the hearings before the Commission and that the court says:

We are not here called upon to consider whether the Commission may receive and act upon hearsay evidence seasonably objected to as hearsay. making no distinction between damage cases and rate investigations.

It would seem, therefore, to be the better practice on the part of railroad counsel in reparation cases before the Commission to except to all hearsay or otherwise incompetent evidence. And it would seem likewise to be the safer plan for counsel representing shippers in reparation cases to prove up their cases by direct evidence instead of hearsay testimony, and always offer the best evidence of the facts to be proven where within their power, and if not within their power, make this circumstance to appear in explanation of the next best evidence of the particular fact. For example, the best evidence that a shipment moved is the duly signed original bill of lading. If that original has been lost in the informal negotiation with the carriers, and the shipper is able only to produce a copy, the facts surrounding the loss of the original should be made to appear.

SECTION 10

See Appendix, Page 101, for text of both
the former and present Acts.

Section 10, except for making its provision specifically applicable to transmission of intelligence by amendment of the proviso to the first paragraph, has suffered no change other than that its paragraphs are now numbered 1 to 4.

SECTION 11

See Appendix, Page 104, for text of both

the former and present Acts.

Section 11 is the section creating an Interstate Commerce Commission and has not been changed. The enlargement of the Commission is provided for under Section 24.

SECTION 12

See Appendix, Page 104, for text of both
the former and present Acts.

Section 12 provides for the obtaining of information by the Commission from the carriers' books and records, and from witnesses summoned to appear at its hearings. There has been no change, except that its paragraphs are now numbered 1 to 7.

SECTION 13

See Appendix, Page 107, for text of both

the former and present Acts.

Section 13 has been amended by adding two paragraphs to the end of the section as it appeared in the old act. These new paragraphs are numbered 3 and 4, and the old paragraphs have been numbered 1 and 2.

The new paragraphs might be referred to as the "Shreveport case" paragraphs because they enact into substantive law the doctrine of the Shreveport case (Houston & Texas Ry. vs. U. S., 234 U. S. 342), in which the Supreme Court, affirming the Commission, held that under Section 3 the Commission could require the removal of undue prejudice against interstate rates that were reasonable per se, brought about by lower intrastate rates.

Paragraph 3 provides for the machinery calculated to bring about that co-operation between the Commission and the rate regulating bodies of the several states which seems contemplated in any case involving a Shreveport situation. It is noteworthy, incidentally, that this paragraph authorizes the carriers to file petitions with the Commission seeking an investigation of Shreveport situations. There was some doubt whether a carrier could institute a Shreveport case under the old act. This doubt is now removed.

The Commission under this paragraph may confer with and hold joint hearings with the state regulating bodies, and may "avail itself of the co-operation, services, records, and facilities of such state authorities in the enforcement of any provision of this act."

It is to be noted that these services, facilities and co-operation may be availed of not only in Shreveport situations but "in the enforcement of any provision of this act." From which it would seem that in the enforcement of the car service provisions and all its other functions, both new and old, the Commission has available to it the whole machinery of all the railroad commissions of the several states. It does not seem that the importance of this great plan of co-operation has been as yet fully grasped by the general public. The Commission acted pursuant to these powers when it invited certain designated representative state railroad commis

sioners to sit with it in the hearing of Ex Parte 74, the general advance rates case.

Paragraph 4 declares as unlawful any state or Director-General-made rate, fare, charge, classification, regulation or practice which causes any undue or unreasonable advantage, preference or prejudice as between. persons or localities in intrastate commerce on the one hand and interstate or foreign commerce on the other hand, or any undue, unreasonable or unjust discrimination against interstate or foreign commerce.

It is to be noted that the Shreveport doctrine under these provisions is to "cut both ways." There must be no undue prejudice against intrastate commerce as well as none against interstate commerce. The doctrine as heretofore invoked was only applied when the prejudice was against interstate commerce. Of course, now that the Commission has the power to prescribe minimum as well as maximum rates (as will be pointed out in discussing section 15), a minimum interstate rate that will not prejudice an intrastate rate can be prescribed, which before was beyond the authority of the Commission.

These changes in section 13 become even more important when viewed from a jurisdictional standpoint. If a carrier deems any intrastate rate to be too low it may now file a complaint against the rate or rates with the Commission, and if the Commission can find that the rate results in unjust discrimination against interstate commerce it can require the intrastate rate to be raised to a proper level. Any intrastate rate that is too low necessarily produces an undue burden upon interstate commerce. Any undue burden upon interstate commerce must necessarily be an unjust discrimination against interstate commerce. This amounts to no more nor less than a jurisdiction in the Commission in a proper case to determine what the intrastate rate must be so that it will not be confiscatory.

If such a jurisdiction is now reposed in the Commission, will the courts take jurisdiction of intrastate rate cases to try the question of confiscation? It would seem not.

The Supreme Court in considering the powers of the Interstate Commerce Commission with respect to interstate rates has consistently held since the passage of the Hepburn Act of 1906, endowing the Commission with the power to prescribe reasonable interstate rates, that the courts are without jurisdiction to pass upon the question of the reasonableness per se of any interstate rates, but that that question is one for the sole jurisdiction of the Commission and that the courts will review the orders of the Commission only to the extent such orders appear to be arbitrary or against the evidence.

The question of the confiscatory nature of any rates is no more nor less than a matter of their reasonableness per se.

It would seem to follow that now that the Commission's jurisdiction. over intrastate rates having been extended as it has, the application of a like doctrine with respect to its powers to fix intrastate rates as has always been applied with respect to its jurisdiction over interstate rates, would result in ousting, as it were, the jurisdiction of the courts, henceforth, to try the question of confiscation alleged incident to intrastate rates. Such jurisdiction would seem, in a proper case, to be now reposed solely in the Commission.

SECTION 14

See Appendix, Page 108, for text of both

the former and present Acts.

Section 14 has suffered no change except that its three paragraphs have been numbered.

This section provides that the Commission shall make a report in writing on investigations made by it together with its decision order or requirement in the premises, and, if damages are awarded, such report shall include the findings of fact on which the award is made.

Just what the character of the findings in damage cases should be was considered by Mr. Justice Hughes in Mills vs. Lehigh Valley R. R. Co. (238 U. S. 477), where he quoted from Meeker & Co. vs. Lehigh Valley R. R. Co. (236 U. S., 412), as follows:

We think this is not the right view of the statute and that what it requires is a finding of the ultimate facts, a finding which, as applied to the present case, would disclose,

1. The relation of the parties as shipper and carrier in interstate

commerce.

2. The character and amount of traffic out of which the claims arose. 3. The rates paid by the shipper for the service rendered and whether they were according to the established tariff.

4.

Whether and in what way unjust discrimination was practised against

the shipper.

5. Whether, if there was unjust discrimination, the shipper was injured thereby, and, if so, the amount of his damages.

6. Whether the rate collected from the shipper was excessive and unreasonable and, if so, what would have been a reasonable rate for the service, and

7. Whether, if the rate was excessive and unreasonable the shipper was injured thereby, and if so, the amount of his damages.

Paragraph 2 provides for filing the reports of record and for service of copies thereof upon interested parties.

Paragraph 3 provides for the printing of the reports by the Commission for public information. It is interesting to note that whether or not the reports are printed for public information is discretionary with the Commission. Under present practices all of the reports of the Commission are printed. Some of these reports are of no public interest whatever. It would seem to be a waste to print for the public information reports in which the public can have no interest.

SECTION 15

See Appendix, Page 109, for text of both

the former and present Acts.

The first four paragraphs of the fifteenth section of the old act have been rewritten into seven paragraphs.

Paragraph 1 has been changed, giving the Commission the power, when it finds that the rate, fare, charge, classification, regulation or practice is or will be in violation of the act, to prescribe:

"the just and reasonable individual or joint rate, fare, or charge, or rates, fares, or charges, to be thereafter observed in such case, or the maximum or minimum, or maximum and minimum, to be charged (or, in the case of a through route where one of the carriers is a water line, the maximum rates, fares and charges applicable thereto) and what individual or joint classification, regulation or practice is or will be just, fair, and reasonable," and to make an order requiring the carriers involved to "publish, demand or collect no other than the rate, fare or charge so prescribed, or in excess of the maximum or less than the minimum so prescribed, et cetera."

This change is important. Under the old act the Commission could only prescribe the "individual or joint rate or rates, charge or charges, to be thereafter observed in such case as the maximum to be charged." Under the present act, as will be noted from the quote, the Commission may prescribe the specific rates that shall apply. The Commission also may prescribe the maximum rate to be observed or it may name the minimum rate and it may fix both a maximum and minimum.

The Commission may now find that the rate from "A" to "B" shall be 25 cents, while from "A" to "C" it shall be 26 cents, and the carriers must observe these specific rates and may not treat them simply as maximum rates. If the Commission believes a certain latitude and initiative should be reposed in the carriers to work out an adjustment in a certain rate. situation, this can be provided for by a finding of what the maximum and minimum rates shall be.

It is also to be noted that for some reason Congress has not given the Commission the authority to prescribe minimum joint rail and water rates. In the discussion of section 6, paragraph 13 and sub-paragraph (b), page 25, supra, it was pointed out that the powers of the Commission under that provision to establish through rail and water routes and maximum joint. rates applicable thereto had not been amended to also provide for the establishment of minimum joint rail and water rates.

Just why this difference has been made is difficult to understand, unless it was that Congress did not wish to regulate the competition with rail transportation that might be developed on the waterways.

It might be a question, however, whether under the particular wording of this provision the Congress has accomplished such a purpose, because the joint rate between rail carrier and boat line is not excepted from the joint rates which the Commission is authorized to fix, "to be thereafter

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