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by the violation, or, in other words, that he is entitled to damages. But the amount of damages is quite another thing and, as has been shown, must also be proved in every case.

The expression that may be found in some of the Commission's decisions in unreasonable rate cases, to the effect that reparation therein follows as a matter of law, in reality means that the same proof that establishes the violation of the act also satisfies the law of damages requiring proof of the measure of damages, and that pursuant to the satisfaction of that law, reparation follows.

While there is this difference in the cases, it is, in fact, a difference without a distinction, for in every case the fact of damage, as well as the measure of damage, is established by proof before any complainant is entitled to an award of reparation.

Coming to the other of the matters-the requirement that the Commission must find that some provision of the act is violated upon which to base an award of reparation-it seems clear that the Commission's jurisdiction to award reparation is confined to cases in which a violation of some provision of the act can be shown.

There are a number of penal provisions included as a part of the act, such as, for instance, paragraph 11 of section 6 (see Appendix, page 98), which provides a penalty of $250, if, upon written request made upon a carrier's agent for a written statement of the applicable rate, the agent refuses to give the rate or misstates the rate and the shipper is damaged thereby. In every instance these penalties accrue to the United States and are to be recovered in a civil suit in the courts.

Would an alleged violation of this penal section be such a violation as would support an award of reparation by the Commission? It would

seem not.

Under the terms of the reparation powers of the Commission, it "shall determine" whether any provision of the act has been violated before it can grant reparation. Whether or not any of the penal provisions of the act are violated, under their very terms can be determined only by the courts in which the penalty is to be recovered. If the Commission is not the forum before which the preliminary question of violation can be determined, of course, it has no jurisdiction to grant reparation in a case based upon such violation, it would seem. Although the violation of any penal provision is a violation of the act, yet it would seem that the Commission's authority to award reparation does not extend to violations beyond its jurisdiction to pass upon. The terms under which this authority over reparation is conferred seem to confine the Commission's jurisdiction. to violations which it can itself determine.

The next point to be noticed is that the violation which must furnish the basis for reparation must be a violation of a provision of the act. The

Commission cannot, therefore, grant reparation based upon a violation of some common law rule. Attention is parenthetically directed to Ohio Valley Tie Co. vs. L. N. R. R. Co. (242 U. S. 288), where the Supreme Court gave the inference that the Commission may not only grant the strictly rate damage, but all general damages flowing directly from the violation of the act. It is necessary also to consider whether reparation can be granted based upon the violation of a conference ruling of the Commission.

A conference ruling is an informal ruling or order of the Commission. The Commission is nowhere in the act given authority to award reparation for the violation of its own orders, and certainly under the terms of section 16, it does not seem that a violation of a conference ruling can be construed to be a violation of a provision of the act. If a particular conference ruling simply restates some duty, itself set forth in the act, it would, of course, be the violation of the act and not the violation of the conference ruling that furnishes the basis for reparation. It does not seem, therefore, that a violation of a conference ruling can be made the basis of an award of reparation by the Commission.

It is the view advanced by some that the conference rulings are made pursuant to the power of the Commission under the act to establish reasonable practices to be observed by the carriers. And it is argued that the conference rulings are entitled, therefore, to the same enforcement as provisions of the act. If this be so, it would seem that in all cases where there is no provision of the act requiring the carriers to do a certain thing, which in the pursuit of an enlightened public policy they ought to be required to do, all that is necessary is for the Commission to make a conference ruling on the matter and that fixes the carriers' duty to do the particular thing. But is such a view sound? It does not seem so. Such action would require the Commission to go beyond its sphere of administrator of duties prescribed and become itself the legislator of additional duties. The Commission, of course, can have no power to legislate, because Congress cannot delegate its legislative power to it (Field vs. Clark, 143 U. S. 649).

The Commission has a certain power to prescribe practices that shall be observed by the carriers, and that power is conferred in paragraph 1 of Section 15 (see Appendix, page 109), which is in pertinent part as follows:

That whenever, after full hearing, upon a complaint . . . or after full hearing under an order for investigation and hearing . . . the Commission shall be of opinion that any . . . practice whatsoever of such carrier . . . is or will be unjust, unreasonable or unjustly discriminatory or unduly preferential or prejudicial or otherwise in violation of any of the provisions of this Act, the Commission is hereby authorized and empowered to determine and prescribe what will be the just and reasonable . . . practice . . . to be thereafter followed and to make an order . . .

Pursuant to such terms, it would seem that there must be a formal hearing and that an established routine or practice of some carrier must be brought into issue. It must first be shown that such practice is in violation of some provision of the act and, this appearing, the Commission can then prescribe what the practice should have been or what it shall be for the future. How does such a jurisdiction differ from the Commission's authority over rates themselves? This in no sense gives the Commission authority to initiate what the practices of carriers shall be.

The Commission, by these terms, is not vested with authority to make informal rulings affecting the duties of carriers and the rights of shippers or to make orders pursuant to such informal rulings. In fact, just what provision of the act does give the Commission authority to make and enforce its conference rulings does not appear from a thorough examination of the provisions of the act and the Commission itself in its decisions has never undertaken to point to the provision under which it exercises this authority. The conference rulings first made their appearance November 4, 1907, and since that time their number has increased to over 500.

The new Section 15-a gives the Commission authority to initiate rates, and "rates" is defined as including rates, fares and charges and all classifications, regulations and practices relating thereto. From which it would seem that the Commission can now initiate a practice relating to rates as well as the rate itself. But it must be remembered that the Commission cannot legislate. The Commission cannot extend its jurisdiction by imposing upon the carriers duties which the act itself does not impose.

The power of the Commission to initiate practices relating to rates would seem to embrace only a power to interpret into administrative direction the duties imposed by the act. Duties and obligations and the corresponding rights in the performance of the duties and obligations can only be imposed and granted by legislation. Congress alone can make the rule. The Commission's rules and regulations interpreting the rules laid down by Congress must never extend the obligations set forth in the fundamental rules prescribed by Congress, it would seem. Whenever the rules prescribed by Congress become insufficient for meeting a situation it is they that must be changed before there can be a violation that will give ground for an award of reparation. This is true because, under the reparation provisions of Section 16, the violation of a rule or regulation of the Commission is not made a ground for reparation. It is a violation of some provision of the act that is the necessary prerequisite.

The importance of amending the act, as before suggested, in connection with the making of a reparation order in "overcharge" and "misrouting" cases, seems thus emphasized. Until the act is so amended there is no provision to violate, to furnish the very necessary basis for the award of reparation in such cases.

SECTION 16-A

See Appendix, Page 124, for text of both
the former and present Acts.

Section 16-a is the one providing for the rehearing of cases before the Commission, in which there has been no change.

SECTION 17

See Appendix, Page 125, for text of both

the former and present Acts.

Section 17, providing for the organization of the Commission into divisions, which before was composed of seven paragraphs, now embraces five numbered paragraphs.

Paragraph 1 was not changed except to number it. It relates to the Commission's power to make and amend its rules of procedure, etc.

Paragraph 2, which provides that the Commission may divide itself into as many divisions as it may deem necessary, has been amended to prescribe that each division shall be composed of at least three members.

Paragraphs 3 and 4, which detail the powers of such divisions, have not been changed.

The old paragraphs 5 and 6 have been repealed. Paragraph 6 fixed the secretary's salary at $5,000 a year and paragraph 5 provided that not less than three members should participate in the consideration and decision of rate cases and that valuation cases should be tried before at least five members. The repeal of this latter mentioned paragraph results in the valuation cases being tried before any of the divisions of the Commission, which should greatly facilitate those cases.

Paragraph 5 is the old seventh paragraph providing that nothing in the section shall be deemed to divest the Commission of any of its powers.

It might be noted that rehearings are to be before the entire Conimission and not a division thereof, the same as before.

It is within the scope of these discussions to consider other amendments that might or should be made to this section respecting organization, designed further to expedite the Commission's functioning and render its organization more efficient.

The dividing of the Commission into divisions and empowering the division to act with the same authority as the whole Commission with respect to the particular matter delegated to it by the Commission, was a great forward step. Another step remains to be taken. It is the separation of the administrative from the judicial functions and the permanent assignment of all administrative duties to a single division of fixed personnel, specially designated, and the assignment of all judicial duties to the other divisions which shall distribute the cases among themselves as the Commission does now.

The duties of the Commission are either administrative or judicial. With respect to any matter in which, under the act, a formal hearing must be held as a necessary prerequisite to action by it, the function of the Commission is essentially judicial; with respect to all other matters its function is strictly administrative.

In I. C. C. vs. Railway Co. (167 U. S. 479, 499), decided before the Hepburn act of 1906 empowered the Commission to fix a rate for the future, the Supreme Court said:

It is one thing to inquire whether the rates which have been charged and collected are reasonable-that is a judicial act; but an entirely different thing to prescribe rates which shall be charged in the future-that is a legislative act.

Since the power to fix rates for the future has been imposed on the Commission, its exercise of that power has, in some instances, been referred to as a quasi-legislative power. That expression is unfortunate, it would seem, for it is certain that the Commission can have no legislative power, quasi or otherwise, because Congress, from which the Commission must derive its entire authority, cannot delegate its legislative prerogative, in whole or in part (Field vs. Clark, 143 U. S. 649). If the Commission can have no legislative power, how can anything it does be quasi-legislative?

The fixing of a rate to be applied for the future by public carriers is primarily a legislative act to be undertaken only by the legislature. When Congress, however, in imposing this duty on the Commission, did so under terms which require a formal hearing pursuant to pleadings, under a procedure that is to follow that observed in the courts as nearly as may be, it turned the function into a judicial one. Under the act, the Commission can fix a rate for the future only after forming a judgment which must be based on evidence so presented. The Commission cannot exercise an arbitrary power repugnant to the Constitution, and the courts have consequently held that, to be valid, the Commission's decision with respect to rates for the future must be supported by evidence (I. C. C. vs. Union Pacific R. R., 222 U. S. 541, 547; I. C. C. vs. L. & N. R. R. Co., 227 U. S. 88).

There is no question that an inquiry into the reasonableness or lawfulness of rates or practices in the past is a judicial function (I. C. C. vs. Railway Co., supra). And it is equally true that, from the same record. on which the Commission finds a certain rate charged in the past to have been unreasonable, it will also hold that for the future the rate should be so much, and use the rate so fixed for the future as the measure of unreasonableness in the past. If the one is a judicial act, certainly the other must be also.

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The fixing of a rate for the future, arbitrarily, without a hearing and with no evidence on which to form a judgment, can be accomplished only as a legislative act. When the Congress, in delegating the function, hedges

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