§ 270. Commission Has Power to Prescribe Rates for the Future. When the Act to Regulate Commerce was originally passed the Commission appointed thereunder, believing the law so authorized, exercised the power to prescribe rates for the future. That this power was not delegated to the Commission prior to the Hepburn Amendment was definitely decided by the Supreme Court in Interstate Commerce Commission v. Cincinnati, N. O. & T. P. R. Co.,176 where the question was elaborately discussed and the conclusion stated "that under the interstate commerce act the Commission has no power to prescribe the tariff of rates which shall control in the future." Under the old law, the Commission had and exercised the power to declare a particular advance in rates illegal. The exercise of this power practically meant prescribing the old rate as the rate for the future. This is clearly shown in the Tift case. There an advance was made by the carriers, which advance, on hearing, was declared illegal, and the whole advance was held to be the measure of reparation allowed shippers.177 The Amendments of 1906, 1910 and 1920 give the Commission power to initiate rates, fares and charges and to prescribe minimum and maximum or minimum or maximum rates, fares and charges.178 When a rate, regulation or practice of a common carrier is within the jurisdiction conferred on the Commission it may prescribe what shall be such rate, regulation or practice for the future, and when the Commission acts on substantial evidence in accordance with law its orders in respect to the questions within its jurisdiction will not be set aside by the courts.179 "But," said Mr. Justice Lamar, delivering the opin 57 L. Ed. 226, 33 Sup. Ct. 83; samestyled case in Commerce Court, 192 Fed. 330, Opinion Com. Ct. No. 15, p. 189. 176 Interstate Com. Com. v. Cincinnati, N. O. & T. P. R. Co., 167 U. S. 479, 42 L. Ed. 243, 17 Sup. Ct. 896. 177 Southern Ry. Co. v. Tift, 206 U. S. 428, 51 L. Ed. 1124, 27 Sup. Ct. 109; Southern Pine Lumber Co. v. Sou. Ry. Co., 14 I. C. C. 195; Nicola Stone & Myers Co. v. Louisville & N. 178 Sec. 16, Interstate Com. Act, ion of the Supreme Court, "the legal effect of evidence is a question of law. A finding without evidence is beyond the power of the Commission. An order based thereon is contrary to law, and must, in the language of the statute, be 'set aside by a court of competent jurisdiction.' "180 The "opinion" of the Commission upon which it may act must be based upon a full hearing at which evidence is received, of which the carrier is apprised and given an opportunity to meet.181 The Commission has entered many orders under the authority granted by this provision. Illustrative of these are: Distribution of cars, 182 prescribing rates,183 division of rates,184 terminal charges,185 ordinary switch connections,186 88, 54 L. Ed. 946, 30 Sup. Ct. 651; Interstate Com. Com. v. Delaware, L. & W. R. Co., 220 U. S. 235, 55 L. Ed. 448, 31 Sup. Ct. 392. 180 Interstate Com. Com. v. Louisville & N. R. Co., 227 U. S. 88, 57 L. Ed. 431, 33 Sup. Ct. 185, reversing Louisville & N. R. Co. v. Interstate Com. Com., 195 Fed. 541, Opinion Com. Ct. No. 4, p. 325, 375. 181 Atlantic C. L. R. Co. v. Interstate Com. Com., 194 Fed. 449, Opinion Com. Ct. No. 3, p. 255. 182 Traer v. Chicago & A. R. Co., 13 I. C. C. 451; Chicago & A. R. Co., and Illinois Cent. R. Co. v. Interstate Com. Com., 173 Fed. 930; Interstate Com. Com. v. Illinois Cent. R. Co., 215 U. S. 452, 54 L. Ed. 280, 30 Sup. Ct. 155; Interstate Com. Com. v. Chicago & A. R. Co., 215 U. S. 479, 54 L. Ed. 280, 30 Sup. Ct. 163; Hillsdale Coal & Coke Co. v. Pennsylvania R. Co., 19 I. C. C. 356; sustained, Pennsylvania R. Co. v. Interstate Com. Com., 193 Fed. 81, Opinion Com. Ct. No. 31, p. 275. 183 Burnham - Hanna - Munger Dry Goods Co. v. Chicago, R. I. & P. Ry. Co., 14 I. C. C. 299; order enjoined, Chicago, R. I. & P. Ry. Co. v. Inter state Com. Com., 171 Fed. 680; Commission sustained, Interstate Com. Com. v. Chicago, R. I. & P. Ry. Co., 218 U. S. 88, 96, 54 L. Ed. 946, 30 Sup. Ct. 651, holding that the power extends to the regulation of old or new rates, notwithstanding changes in business may be necessary. 184 Eichenberg v. Southern Pac. Co., 14 I. C. C. 250; injunction denied, Southern Pac. Terminal Co. v. Interstate Com. Com., 166 Fed. 134; Commission sustained, Southern Pac. Terminal Co. v. Interstate Com. Com. 219 U. S. 498, 55 L. Ed. 310, 31 Sup. Ct. 279. 185 Cincinnati & C. Traction Co. v. Baltimore & O. S. W. R. Co., 20 I. C. C. 486; enjoined, Baltimore & O. S. W. R. Co. v. United States, 195 Fed. 962, Opinion Com. Ct. No. 60, p. 431; order voided, United States v. Baltimore & O. S. W. R. Co., 226 U. S. 14, 57 L. Ed. 104, 33 Sup. Ct. 5. 186 Corp. Com. of North Carolina v. Norfolk & W. Ry. Co., 19 I. C. C. 303, order sustained, Norfolk & W. Ry. Co. v. United States, 195 Fed. 953, Opinion Com. Ct. No. 40, p. 413; New Orleans Board of Trade v. Louisville & N. R. Co., 17 I. C. C. 231, order prohibiting discrimination,187 icing charges and precooling.188 The Commission, however, has no jurisdiction to fix rates based upon estoppel of the carrier.180 When relief is denied to the shipper, the order cannot be set aside by a court.190 § 271. Suspension of Rates, Regulations and Practices.The Act of 1910 gives the Commission authority, with or without complaint or other formal pleadings, but upon reasonable notice, temporarily to suspend and, after hearing, to make such orders in reference to fares, charges, classifications, regulations, and practices, as would be proper in a proceeding after such fares, etc., become effective. The burden of proof to justify the increased rate is on the carrier at all hearings involving a rate increased after January 1, 1910, or of a rate sought to be increased after the passage of the Amendment of June 18, 1910.191 set aside, Louisville & N. R. Co. v. Interstate Com. Com., 195 Fed. 541, Opinion Com. Ct. No. 4, pp. 325, 375, Commerce Ct. reversed, Interstate Com. Com. v. Louisville & N. R. Co., 227 U. S. 88, 57 L. Ed. 431, 33 Sup. Ct. 185; Chamber of Commerce of Newport News v. Southern Ry. Co., 23 I. C. C. 345, sustained, Southern Ry. Co. v. United States, 204 Fed. 465, Opinion Com. Ct. No. 82, p. 603; Railroad Com. of La. v. St. Louis & S. W. Ry. Co., 23 I. C. C. 31, sustained, Texas & Pac. Ry. Co. V. United States, 205 Fed. 380, Opinion Com. Ct. No. 68, p. 655, (Shreveport Case); Houston, E. & W. T. Ry. Co. v. United States, 234 U. S. 342, 58 L. Ed. 1341, 34 Sup. Ct. 833. 187 Atchison, T. & S. F. Ry. Co. v. United States, 203 Fed. 56, 59, Opinion Com. Ct. No. 61, p. 537. For history of case, see Arlington Heights Fruit Co. v. Southern Pac. Co., 22 I. C. C. 149, Atchison, T. & S. F. Ry. Co. v. Interstate Commerce Com., 190 Fed. 591, Opinion Com. Ct. No. 7, p. 83. 188 Arlington Heights Fruit Co. v. Southern Pac. Co., 20 I. C. C. 106; Re Precooling and Preicing, 23 I. C. C. 267, order sustained, Atchison, T. & S. F. Ry. Co. v. United States, 204 Fed. 647, Opinion Com. Ct. No. 41, p. 627, affirmed, Atchison, T. & S. F. Ry. Co. v. United States, 232 U. S. 199, 58 L. Ed. 568, 34 Sup. Ct. 291. 189 Southern Pac. Co. V. Interstate Com. Com., 219 U. S. 433, 55 L. Ed. 283, 31 Sup. Ct. 288, reversing Southern Pac. Co. v. Interstate Com. Com., 177 Fed. 963, and the Commission in Western Oregon Lumber Mnfg. Assn. v. Southern Pac. Co., 14 I. C. C. 61. This hearing under the Transportation Act, 1920, must be concluded in seven months, else the new individual or joint rate, fare, charge, classification or practice becomes effective; subject, however, to the carrier's being required to render an accounting should the Commission thereafter condemn the charge.192 The Commission has held many investigations under this section, the conspicuous among which are Advances in Rates -Eastern case,193 Advances in Rates-Western case,' 194 Five Per Cent Advance,195 and in the Western Advance Rate case 1915.196 In the Eastern Advance case, the question of the burden of proof was discussed, and it was there held that the Amendment of 1910 was unlike the English Act on a similar subject. Said the Commission: "Nor should our statute receive exactly the same interpretation which has been put upon the English act. That act provides that the carrier shall justify the 'increase of the rate.' Our act provides that the burden of proof shall be upon the carrier to show that the 'increased rate' is just and reasonable. The English act creates a presumption that the rates in effect on December 31, 1892, were reasonable rates, and the justice of any increase must be tried by that standard. Our act does not intend to enact that all rates in effect on January 1, 1910, are just and reasonable. Upon the contrary, it is open to any shipper or to this Commission to attack such a rate as unjust and unreasonable. The only effect of our statute is to cast, in certain cases, the burden of proof upon the carrier." It was also then held that rates otherwise reasonable would not be permitted to be advanced "for the purpose of bolstering up the credit of our railroads," and that "no general advance in rates should be permitted until carriers have exhausted every reasonable effort toward economy * 195 Five Per Cent Case, 31 I. C. C. 351, 32 I. C. C. 325. 196 Western Rate Advance Case 1915, 35 I. C. C. 497. in their business.''197 It is doubtful if the Commission would adhere to the declaration above quoted against increasing rates to preserve the credit of the carriers since the passage of the Transportation Act, 1920. § 272. Through Routes and Joint Rates.-The Commission has, after hearing, on a complaint or upon its own initiative, the right to establish joint rates and prescribe the divisions thereof, and the terms and conditions under which through routes shall be operated. Under what circumstances a through route and joint rate shall be prescribed has been discussed herein (Section 241, ante) and need not be repeated. It is sufficient to say that when the carriers over whose lines the through route is to be established are subject to the jurisdiction of the Commission, the Commission has a discretion as to whether or not it will establish the through route and joint rate, 198 As shown in Section 241, this discretion must be exercised within the terms of the statute. § 273. Allowances for Services or Instrumentalities. The Amendment of 1906 provides: "If the owner of property transported under this Act directly or indirectly renders any service connected with such transportation, or furnishes any instrumentality used therein, the charge and allowance therefor shall be no more than is just and reasonable, and the Commission may, after hearing on a complaint or on its own initiative, determine what is a reasonable charge as the maximum to be paid by the carrier or carriers for the services so rendered or for the use of the instrumentality so furnished, and fix the same by appropriate order." This authority of the Commission was discussed in the chapter on Equality of Rates. § 274. Powers Enumerated, not Exclude Others. By the Amendment of 1906, concluding Section 15 of the Act, it was provided, "the foregoing enumeration of powers shall 197 Pp. 253, 254, 255, 279 of Opinion Eastern Case, supra. 198 Truckers Transfer Co. V. Charleston & W. C. Ry. Co., 27 I. C. |