to qualify the effect of the checking, the commis- 9. COMMERCE 88-COMMISSION'S REPARA- Where there was substantial evidence in a proceeding before the Interstate Commerce Commission for reparation that the owners specified in the claims had been subjected to the excessive charges found by the commission, its report could not be treated as a nullity in an action to recover the amounts awarded because of the failure to appoint an examiner to investigate the books of commission merchants on which most of the claims were based, as was at first intended. (40 Sup.Ct.) 11. COMMERCE 95- CONSIDERATION OF Where hearsay evidence was introduced before the Interstate Commerce Commission in a reparation proceeding without objection, and was substantially corroborated by original evidence clearly admissible against the parties to be affected, the findings and order of the commission may not be rejected as unsupported by evidence, because the hearsay evidence was considered with the rest, especially as the order is only prima facie evidence. 12. COMMERCE 95-DENIAL OF MOTION TO In an action to recover amounts awarded plaintiff on assigned claims by a reparation orIder of the Interstate Commerce Commission, a motion for rulings that on all the evidence plaintiff was not entitled to recover, and that there was not sufficient evidence before the commission to sustain its order, was properly overruled, where some of the claims were supported by evidence, as the request for an adverse ruling should not have been directed to the award in toto. for the benefit of the owners, and a representative of the association had possession of assignments made to him, this constituted a reasonable assurance of their genuineness, and formal proof of the handwriting of the assignors by subscribing witness or otherwise was not necessary. 14. COMMERCE 87-ASSIGNEE ENTITLED TO REPARATION AWARD AND RECOVERY THEREON, THOUGH NOT HOLDING BENEFICIAL TITLE. Assignments absolute in form of claims for reparation on account of excessive freight charges vested the legal title in the assignee, and entitled him to claim award of reparation and recover it by action at law brought in his own name for the benefit of the assignors, though the purpose of the assignment was not such as to vest him with the beneficial or equitable title. 15. ASSIGNMENTS 26-CLAIM FOR REPARATION FOR OVERPAYMENT TO CARRIER IS ASSIGNABLE. (Comp. St. §§ 8572, 8573), section 13, as amendThough Interstate Commerce Act, $$ 8, 9 ed by Act June, 18, 1910, § 11 (Comp. St. § 8581), and section 16, as amended by Act June 29, 1906, § 5 (Comp. St. § 8584), relative to damages for violations thereof and awards for reparation, does not mention representatives or assigns of the person aggrieved, a claim for reparation is assignable, as the claim is for compensation and not for a penalty, and assignable in the absence of any expression of a legislative intent to the contrary. 16. COMMERCE 85- RULING OF COMMISSION AS TO RECOGNIZING ASSIGNMENTS OF CLAIMS FOR REPARATION MAY BE DISREGARDED BY IT. A ruling of the Interstate Commerce Commission that in an award for reparation it would not recognize an assignment to a stranger to the transportation records treated as an administrative regulation constituted no limitation upon the jurisdiction of the commission, and might be disregarded by it. In Error and on Writ of Certiorari to the United States Circuit Court of Appeals for the Eighth Circuit. Action by E. B. Spiller against the Atchison, Topeka & Santa Fé Railway Company, the Chicago & Eastern Illinois Railroad Company, the Chicago & Alton Railroad Company, the Missouri Pacific Railway Company, the St. Louis, Iron Mountain & Southern Railway Company, the St. Louis & San Francisco Railroad Company, the Chicago, Rock Island & Pacific Railway Company, the Illinois Central Railroad Company, and the Missouri, Kansas & Texas Railway Company. A judgment for plaintiff was reversed by the Circuit Court of Appeals (246 Fed. 1, 158 C. C. A. 227), and rehearing was denied (249 Fed. 677, 161 C. C. A. 587), on separate writs 13. COMMERCE 87—FORMAL PROOF OF HAND- of error taken by each defendant, and plain WRITING OF PERSONS ASSIGNING CLAIMS FOR In a reparation proceeding before the Interstate Commerce Commission prosecuted by a cattle raisers' association, where it was shown that the association was prosecuting the claims tiff brings error and petitions for certiorari. Writs of error dismissed. Writs of certiorari allowed. Judgment of the Circuit Court of Appeals reversed, and judgment of District Court affirmed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes final in the sense of concluding the litigation, would be reviewable in this court by writ of error pursuant to section 241, Judicial Code (Comp. St. § 1218), in each case where the matter in controversy exceeds $1,000, besides costs. In the cases of the Chicago & Alton and the Missouri Pacific Companies, the respec *120 *Mr. Justice PITNEY delivered the opin- tive judgments with interest up to the issuance of the writs of error from this court ion of the Court. Plaintiff in error commenced an action were materially less than $1,000; in each against defendants in error jointly in the of the other cases substantially in excess of District Court of the United States for the that amount; the aggregate of the judgments Western District of Missouri under section being more than $150,000. For want of a suf16 of the act to regulate commerce as amend- ficient amount in controversy the two smaller ed (Act Feb. 4, 1887, c. 104, 24 Stat. 379, 384; judgments would not be reviewable here by Act June 29, 1906, c. 3591, § 5, 34 Stat. 584, writ of error even were they final in effect; 590; Act June 18, 1910, c. 309, § 13, 36 Stat. but all the writs of error must be dismissed 539, 554 [Comp. St. § 8584]), to recover cer- because the judgments call for further protain amounts awarded to him against ceedings in the trial court; it being elementhem respectively in a reparation order tary that this writ will lie to review final made by the Interstate Commerce Com-judgments only. McLish v. Roff, 141 U. S. 661, 665, 12 Sup. Ct. 118, 35 L. Ed. 893; Luxton v. North River Bridge Co., 147 U. S. 337, 341, 13 Sup. Ct. 356, 37 L. Ed. 194; Heike v. United States, 217 U. S. 423, 429, 30 Sup. Ct. 539, 54 L. Ed. 821. #119 *Messrs. Buckner F. Deatherage, of Kansas City, Mo., and S. H. Cowan, of Ft. Worth, Tex., for plaintiff in error. Messrs. T. J. Norton and Gardiner Lathrop, both of Chicago, Ill., for defendants in error. mission January 12, 1914: His petition contained also a count setting up a conspiracy between defendants for the restraint of interstate commerce, and claiming treble damages under section 7 of the Sherman Anti-Trust Act of July 2, 1890 (chapter 647, 26 Stat. 209, 210 [Comp. St. § 8829]); but this was abandoned at the trial. Defendants having filed separate answers, a jury was waived by stipulation, and a test case tried before the court-all defendants participating-with the result that a decision was rendered in favor of plaintiff, pursuant to which a combined judgment was entered, amounting in effect to as many judgments as there were defendants, each for the amount of the commission's award against the particular defendant with interest and attorneys' fees. Defendants sued out separate writs of error from the Circuit Court of Appeals, where, by stipulation, the cases were heard together upon a single record. That court reversed the judgments, ordered the cause remanded to the District Court with directions to grant a new trial (Atchison, T. & Santa Fé R. Co. v. Spiller, 246 Fed. 1, 158 C. C. A. 227), and refused an application for a rehearing (249 [3, 4] However, upon consideration of the particular circumstances of the case, we have concluded that a writ of certiorari ought to be allowed, without further protracting the litigation to the extent that would be necessary in order to reach final judgments; the transcript of the record and proceedings returned in obedience to the writs of error to stand as the return to the writ of certiorari. This writ is allowable by virtue of section 240, Judicial Code (derived from section 6 of the Act of March 3, 1891, c. 517, 26 Stat. 826, 828 [Comp. St. § 1217]), in the case of the two smaller judgments, because the decision of the Circuit Court of Appeals is made final by the combined effect of sections 128 and 241; and in the case of *the larger judgments it is allowable under section 262 of the Code (section 716, Revised Stat. U. S. [Comp. St. § 1239]), in aid of the ultimate jurisdiction of this court to review those cases by writs of error. Lau Ow Bew v. United States, 144 U. *122 Fed. 677, 161 C. C. A. 587). Writs of error were prayed for and allowed for the review S. 47, 58, 12 Sup. Ct. 517, 36 L. Ed. 340; In re Ct. 385, 41 L. Ed. 782; Whitney v. Dick, 202 for the allowance of a writ of certiorari was United filed, the consideration of which was post-U. S. 132, 135, 26 Sup. Ct. 584, 50 L. Ed. 963; poned to the hearing under the writs of McClellan v. Carland, 217 U. S. 268, 277, et seq., 30 Sup. Ct. 501, 54 L. Ed. 762; States v. Beatty, 232 U. S. 463, 467, 34 Sup. Ct. 392, 58 L. Ed. 686; Meeker v. Lehigh Valley R. R. Co., 234 U. S. 749, 34 Sup. Ct. 674, 15 L. Ed. 1576; Id., 236 U. S. 412, 417, 35 Sup. Ct. 328, 59 L. Ed. 644, Ann. Cas. 1916B, 691. error. [1, 2] The jurisdiction of the District Court *121 having been in*voked not because of diversity of citizenship but because the suit was one arising under laws of the United States other than those particularly mentioned in section Coming to the merits: The ground upon 128, Judicial Code, as amended (Act Jan. 28, 1915, c. 22, § 2, 38 Stat. 803 (Comp. St. § 1120), which the Circuit Court of Appeals reversed it follows that the judgments were not made the judgments, and the ground principally "final" by the section referred to, and, if relied upon to sustain its decision was (40 Sup.Ct.) the refusal by the trial court of a motion | (evidently a misprint for "consignee") to the made by defendants to hold: (a) That upon delivering carrier, and subsequently the cattle all the evidence plaintiff was not entitled to were sold upon the market and the amount of recover against any or all of the defendants; the freight deducted from the purchase price, and (b) that there was not sufficient evi- remittance being made for the balance, so dence before the commission to sustain its that in all cases the owner and shipper of the order of reparation. The latter is the sub- cattle finally paid the transportation charges; stantial question actually presented. and that by the unreasonable exactions of the carriers the shippers were damaged in the amounts stated in the appropriate column of Appendix A, since they received for the cattle less by those amounts than they would have received had the rate found reasonable been The course of proceedings at the trial, as appears from the bill of exceptions, was as follows: Plaintiff introduced the report of the Interstate Commerce Commission (unreported opinion No. A-583 in case No. 732, Cattle Raisers' Association of Texas v. Mis #124 souri, Kansas & Texas Railway Co., dated charged; that in the case of *some of the January 12, 1914), and the order of repara- claims the shippers made assignments to II. tion made pursuant to it and upon which the E. Crowley, then being secretary of the Cataction was based. Defendants having admit- tle Raisers' Association, in a form set forth ted the service of the order, and that the in the report; that subsequently Crowley money awarded had not been paid, plaintiff ceased to be such secretary, and was succeedrested. The report makes an award in favored by Spiller, the plaintiff, to whom Crowley of Spiller, plaintiff in error, as assignee of assigned all claims previously assigned to a large number of claims for reparation by him; and that other specified claims were reason of excessive rates charged by the re-assigned by the shippers to Spiller after he spective carriers on interstate shipments of became secretary, the form of assignment becattle from points of origin in Texas, Okla-ing the same as that previously employed. homa, New Mexico, Colorado, and Kansas, Defendants, endeavoring to show the insufto destinations at Kansas City, St. Louis, ficiency of the evidence upon which the findChicago, St. Joseph, and New Orleans, on va-ings and order of the commission were based, rious dates between August 29, 1906, and introduced a transcript of the stenographer's November 17, 1908; and a further award to notes of the testimony taken upon the hearing named shippers in the case of certain unas- of the reparation claims, following this by insigned claims pertaining to similar ship- troducing a sample page taken from one of *123 the exhibits introduced before the commission ments; the several claims, assigned and unas illustrative of the form of exhibits there assigned, with distinguishing marks, being set introduced. After other evidence not necesforth in Appendix A, showing the delivering sary to be mentioned, and a request for judg carriers against which the claims were allow-ment in favor of defendants, and for certain ed and, in each case, the consignor, points of rulings on points of law that would have proorigin and destination, number of cars ship-duced that result, all of which were refused, the case was closed. ped, weight, rate paid, the lower rate sanctioned by the commission, amount of refund required, and the interest thereon. The report contains appropriate findings adequate to support the award, among them the following: That the persons named in Appen It appears that in February, 1904, the Cattle Raisers' Association of Texas, in behalf of its members and of others interested, petitioned the Interstate Commerce Commission un dix A as consignors shipped from the points of origin to the points of destination specified, by the line of road named as the "delivering road," the number of cars and of the aggre gate net weight stated; that the shippers paid to the delivering carriers freight upon the shipments at certain rates named; that in each instance this rate was unreasonable and excessive, and a reasonable rate to have been charged would have been the lower rate specified as having been subsequently established by the commission, and that therefore the delivering carriers collected from the shippers unreasonable charges on account of the ship-Act of June 29, 1906 (chapter 3591, 34 Stat. ments in amounts named in the column head- 584, 589 [Comp. St. § 85831), which, by joint resolution of June 30, 1906 (34 Stat. 838), ed "Amount of Refund"; that the shipments of live stock were in all cases consigned to took effect 60 days after its approval by the some person at the delivering market, usual- President, or on August 28, 1906, the Cattle ly a commission firm; that the freight was Raisers' Association immediately thereafter paid in the first instance by the "consignor" | applied for and obtained a reopening of the der section 13 of the Commerce Act (Comp. St. § 8581), alleging the rates in force in the territory in question to be unjust and unreatime before to the extent (in most cases) of sonable, they having been advanced some 3 cents per hundred pounds. On August 16, 1905, the commission held (Cattle Raisers' Association of Texas v. Missouri, Kansas & Texas Ry. Co., 11 Interst. Com. Com'n R. 296, 352) that the then existing rates were unjust and unreasonable by the amount of the advance. At this time the commission was not empowered to fix rates for the future. This power having been conferred by the Hepburn #125 matter, to the end that reasonable rates, party complainant is entitled to an award might be established; and on April 14, 1908, | of damages, the commission is to make an the commission decided that the former rates order of reparation accordingly, and in a suit should be restored, but that reparation would based thereon "the findings and order of the not be allowed upon claims accruing prior to commission shall be prima facie evidence of August 29, 1906 (date of the application). 13 the facts therein stated." The same section Interst. Com. Com'n R. 418. 435. The reduc- contemplates that numerous parties may ed rates finally were put into effect Novem- unite in a claim for reparation, and that ber 17, 1908. numerous carriers may be joined as defendants; and similarly that in a suit brought upon such award there may be a joinder of parties plaintiff and defendant. And, by section 17 (24 Stat. 385; 25 Stat. 861 [Comp. St. § 8586]), "the commission may conduct its proceedings in such manner as will best conduce to the proper dispatch of business and to the ends of justice." The reparation claims in controversy appear to have been filed in due season by the Cattle Raisers' Association in behalf of its members and other shippers interested, and in the names of the alleged owners of the cattle shipped. [5] The transcript of the testimony taken by the commission, as introduced in evidence in the District Court, forms the basis of the decision of the Circuit Court of Appeals that the reparation order was unsupported by evidence. But the transcript shows that important documentary evidence was introduced, and furnished the principal foundation for the findings made. This documentary evidence (except the single sheet offered for purposes of illustration) was not introduced in the District Court, in order, as stated by counsel, to "avoid introducing a number of papers that would almost fill a farm wagon." But obviously we hardly could sustain a decision rejecting the reparation order upon the ground that there was not sufficient evidence before the commission to support it when the whole of the evidence that was before the commission was not produced. [6] That this is a matter of substance will appear from a review of the course of the proceeding as disclosed by the stenographer's transcript. The evidence was taken by Mr. Commissioner Prouty at Chicago; there be ing three sessions, the first on September 19 and 20, 1912, the second on January 24 and the third on October 17 in the following year. They were held in the presence of counsel *126 for the *Cattle Raisers' Association, who appeared for the claimants, and counsel for the several carriers interested. If we were called upon to review the proceeding as upon a writ of error or appeal it might be difficult to say that no improper evidence was admitted, that production of the best available was insisted upon, or that a different conclusion might not have been reached upon that which was admitted. But the scope of the judicial review is not so extensive. Section 13 of the Act to Regulate Commerce (Act Feb. 4, 1887, c. 104, 24 Stat. 379, 383, amended June 18, 1910 [chapter 309, 36 Stat. 539, 550]) requires the commission on receipt of a claim for reparation to proceed on notice to the carrier to "investigate the matters complained of in such manner and by such means as it shall deem proper"; and by section 16 (34 Stat. 590; 36 Stat. 554), if, after such hearing, the commission shall determine that any These provisions allow a large degree of latitude in the investigation of claims for reparation, and the resulting findings and order of the commission may not be rejected as evidence because of any errors in its procedure not amounting to a denial of the right to a fair hearing, so long as the essential facts found are based upon substantial evidence. #127 [7-9] *In the present case, the hearing was informal, but not to the extent of sacrificing essential rights of parties; and it cannot be characterized as arbitrary or unfair. Many carriers were interested, and they were represented by counsel. Thousands of carload shipments were in question, but the points in real controversy were few, and there was a natural desire on all sides to expedite the hearing. In the main, counsel for the carriers co-operated in facilitating the investigation. It was not in dispute that all shipments under inquiry were made during a period when the tariff rates were under investigation, and that afterwards those rates were determined by the commission to have been excessive. It appeared that itemized claims for reparation had been made out in duplicate (one copy of each being filed), in the names of the parties alleged to have made shipments of cattle as owners during the period in question, that these were based in most cases upon data furnished by the commission houses at the several points of destination, as taken from their books, in other cases by the shippers themselves, and that they were computed by applying the excess charges, as determined, to the actual weights of the shipments where known, in other cases to the minimum carload weights. There was evidence that a few of the cattle shippers kept books, they relying upon the commission companies to do this, and that such companies were the consignees of the cattle, and made it a practice on receiving a shipment to pay the freight, sell the cattle, and remit the proceeds to the owner after deducting the freight paid and other charges. During the hearing, there was drawn off (40 Sup.Ct.) from the claims as made up and filed a sum- | sion of the hearing it was the intention to mary for each carrier, purporting to show appoint an examiner to investigate the books the consignor, consignee, originating road, of the commission merchants at the various point of origin, destination, date of delivery, points of destination in order to verify the denumber of cars moved, rate paid, rate estab- tails of the several shipments, and that this lished by the commission, and the overcharge purpose was abandoned in view of the admisclaimed. These were submitted to the sev- sions made by the carriers. Perhaps it eral carriers for investigation by their ac- ought to have been carried out; but the court was not justified in treating the report of the commission as a nullity for this reason, if there was substantial evidence of the essential facts without such verification. We think that what we have detailed of the course of the hearing, taken in connection with what we know and what may be presumed as to the contents of the unproduced documentary evidence, shows there was substantial evidence that the owners specified in the claims had been subjected to the excessive charges with respect to the shipments acknowledged by the carriers; and, as already remarked, the award of reparation was confined to these shipments. *128 counting officers, and *some months later were reported back to Commissioner Prouty by their counsel with the results of such investigation, which in a majority of instances verified the statements said to have been deduced from the records of the commission houses. In some cases, in addition to check marks, “O. K." and other marks indicating that the items had been found correct, waybill references, car numbers, initials, etc., had been inserted; and where it had been found impossible to locate a shipment there were comments tending to add support to the verification of those that were located. No reparation was awarded by the commission except with respect to such shipments as were acknowledged in the reports of the defendants to have moved as stated. These reports were introduced in evidence before Commissioner Prouty, but, as already shown, were not in evidence before the District Court. What we have said as to their contents is gathered from the stenographer's transcript; what else may have appeared upon their face, in the nature of admissions, is left to be inferred. Counsel for some of the carriers undertook to qualify the effect of admissions contained in them, as by saying that the checking meant no more than that a particular car moved as stated, and that the carrier collected the amount of freight specified; that it was not intended to admit that remittance was made to the person named as claimant; that the state ments were subject to confirmation by the books of the commission merchants, or the like. But the commission was justified in according to the reports of the checking an evidential effect, not limited by the qualifying statements, treating the latter as merely argumentative. It might regard the fact that the shipments could be and were identity with the business in addition to that gainfied from the records of the carriers, in the ed in the special study he had made of it manner described, as evidence that the de- while investigating the claims. His explanatails respecting the shippers of the cattle and tion of the method of business and the details the particulars of the shipments were true; of the claims was accepted, and accepted withmight take the movement and delivery of out objection, very much as the testimony of an expert witness might have been accepted. Whether he had shown such special knowledge as to qualify him to testify as an expert was for the Interstate Commerce Commission to determine; and its decision thereon is not to be set aside by the courts unless clearly shown to have been unfounded, which cannot be said in this case. Stillwell Mfg. Co. v. Phelps, 130 U. S. 520, 527, 9 Sup. Ct. 601, 32 L. Ed. 1035; Montana Ry. Co. v. Warren, 137 U. S. 348, 353, 11 Sup. Ct. 96 prepared the claims, had spent much *time and pains in investigating them, and in the course of his duties had visited sev eral of the points of destination and examined the books and records of the commission merchants to ascertain the method in which their business was conducted and records kept. It was he who testified as to the customary course of business of cattle shippers and commission merchants. He had been connected with the Cattle Raisers' Association for about eight years, and might be presumed to have some general familiari *129 [10] The opinion of the Circuit Court of Appeals severely criticizes the evidence on which these conclusions were based, characterizing it as hearsay. It is not to be dis puted that much of the evidence-including essential parts of it-is properly so characterized. The only witness sworn was Mr. Williams, assistant secretary of the Cattle Raisers' Association, who had gathered the data upon which the claims were based, instances from the cattle shippers. He had mostly from commission merchants, in some *130 the freight thus *acknowledged as evidence |
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