308. Practices in Suspension Cases Where There Exist Intrastate Rates

314. 315.

316.

Valuation of Property.

Oral Argument.

Estoppel by Former Order of the Commission.

Rules of Procedure Prescribed by the Commission.

317. Public Sessions and Hearings.

318. Personal Appearances.

324. Reparation Statements-Formal Claims for Reparation Based upon

333. Documentary Evidence.

334. Briefs and Oral Argument.

335. Applications for Rehearings, Rearguments, or Modification of Orders. 336. Number of Copies of Petitions, Etc., and Replies Thereto.

337. Transcript of Testimony.

338. Compliance with Orders.

339. Applications Under Fourth Section; Applications for Certificates of Convenience and Necessity Under Inland Waterways Act.

340. Suspensions.

341. Proceedings in Finance Cases; Applications to Consolidate-Procedure. 342. Information to Parties.

343. Specifications As to Complaints, Answers, Petitions, Applications, Briefs, Etc.

344. Computation of Time-Sundays and Legal Holidays.

348. Form of Petition for Leave to Intervene.

349. Form of Petition for Rehearing or Reargument.

350. Form of Reparation Statement Under Rule V.

§ 290. Scope of Chapter.-In the next preceding chapter there is a discussion of the powers and duties of the Interstate Commerce Commission. From such statement of powers and duties it was seen that the jurisdiction of the Commission divides itself into those investigations (a) which have to do with the general execution of the Commerce Acts in which parties are not directly involved and in which the whole public is interested, and (b) into investigations which, while affecting the whole public, more directly affect individuals who are parties to the proceeding.

It is the purpose of this chapter to discuss the procedural statutes and rules adopted and used in each of these kinds of investigations.

The Interstate Commerce Commission is not a court, and while it hears testimony from which it reaches conclusions and while some of its forms of procedure are analogous to those of a court, it is not and should not be embarrassed by purely technical rules.

§ 291. Switch Connections. To invoke the authority of the Commission with reference to the installation and operation of switch connections, there must exist a failure by the carrier to perform its duty in this respect, an application in

writing by a shipper tendering interstate traffic for transportation, or by an owner of a lateral branch line of railroad making complaint as provided in Section 13 of the Act. Upon such application or complaint the Commission shall hear and investigate and determine as to the safety, practicability and justification of such connections and the reasonable compensation therefor, after which the Commission may make an order directing a compliance with the law requiring such connections.212

While formerly the Commission could not compel a carrier to permit the use of its right of way by another carrier,213 the power given by Transportation Act, 1920, over car service and terminals authorizes the Commission, under the terms stated in the Act, to open terminals, spurs and switches to a joint use.

In requiring connections between rail lines and the dock of a water carrier, the Commission has full authority to determine the terms and conditions upon which the conecting tracks, when constructed, shall be operated; and, in the construction or operation of such tracks, it may determine what sum shall be paid to or by each carrier.214

§ 292. Relief under Fourth Section. The fourth section of the Act prescribes a relation between long and short hauls and between through rates and aggregates of the intermediate rates. This section gives the Commission authority to grant relief from the absolute provisions of the statute. There must be an application to the Commission by the carrier showing a "special case," some special reason for the relief, upon which, after investigation, the carrier may be authorized "to charge less for longer than for shorter distances;" and the Commission may from time to time provide the extent to which the carrier may be relieved from the operation of the section. The first statement of authority to grant relief applies to that part of the section referring to the long-and-short haul; the second statement is general and applies to the "operation of this section." The making of the application stays the effect

212 Sec. 1 of Act; Sec. 411, post. 213 Consolidated Pump Co. v. Lake Shore & M. S. Ry. Co., 27 I. C. C. 519.

214 Sec. 6 of Act; Sec. 467, post. Re Wharf Facilities at Pensacola, Fla., 27 I. C. C. 252, 260.

of the prohibition "until a determination of such application by the Commission. ''215

The carriers filed over eleven thousand two hundred applications with the Commission pursuant to the statute.

There is nothing in the "Act prescribing the form, contents or breadth" of applications filed thereunder, and the Commission held that blanket applications covering many deviations from the statute might be filed.216

The statute does not give arbitrary power to the Commission to permit or refuse exceptions, but its action "must be limited and conditioned upon the presence in special cases of conditions and circumstances which would make such exceptions legal and proper and in no wise antagonistic to the other provisions of the Act.' '217

That Congress could make an absolute prohibition of a greater charge for a longer haul than for the shorter was stated by the Commission in discussing the procedure under the section, and it was said that the burden of proof was on the carrier seeking relief from the statutory general rule, a burden that required proof not only of the cause of the lower rate at the longer-distance point, "but of the reasonableness of the rates applied to intermediate points.''218 It has already been shown that the reasonableness of the rate to the intermediate point must be considered, and in addition to that factor the Commission considers water219 and

215 Sec. 4 of Act; Sec. 434, post. 216 Southern Furniture Mnfg. Assn. v. Southern Ry. Co., 25 I. C. C. 379, 381. See Rule 18 of the Rules of Practice of the Commission; Sec. 339, post.

217 Railroad Com. of Nevada v. Southern Pac. Co., 21 I. C. C. 329, 341; Bluefield Shippers Assn. v. Norfolk & W. Ry. Co., 22 I. C. C. 519, 530; Inter Mountain Rate Cases, 234 U. S. 476, 58 L. Ed. 1408, 34 Sup. Ct. 986.

218 Re Application Southern Pac. Co., Long and Short Haul Docket 1243, 22 I. C. C. 366, 374. See also as

to burden of proof: Bluefield Shippers Association v. Norfolk & W. Ry. Co., 22 I. C. C. 519, 530; Janesville Clothing Co. v. Chicago & N. W. Ry. Co., 26 I. C. C. 628; Commercial Club of Duluth v. Baltimore & O. R. Co., 27 I. C. C. 639, 660.

219 Re Transportation of Wood, Hides and Pelts, Railroad Com. of Oregon v. Oregon R. & N. Co., 23 I. C. C. 151, 179; Bowling Green Business Men's Protective Assn. v. Louisville & N. R. Co., 24 I. C. C. 228, 240; Re Lumber Rates to Ohio River Crossings, 25 I. C. C. 50.

market competition 220 and the fact, if a fact, that the road reaching the longer-distance point is a circuitous route.221 Mere railway competition was said to be ineffective to meet the burden on the carriers. The Commission, speaking of such competition and the resulting violation of the Act, said:

"So far as the facts before us disclose, this condition has been brought about entirely by competition between different railways serving New Orleans. If no other element enters into the situation this would probably be wrong.

11222

The Transportation Act, 1920 restricts the authority of the Commission, Section 433, post. Under the amended Act, the rate to the more distant point must be "reasonably compensatory," the circuitous line, if the relief is based upon the ground of circuity, cannot charge more to intermediate points no farther distant than that of the direct line than it charges to the more distant point, and potential water competition shall constitute no authority to grant relief.

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*

§ 293. Water Competition. The last paragraph of Section 4 which prohibits carriers from increasing rates which have been lowered to meet water competition, "unless after hearing it shall be found that such proposed increase rests upon changed conditions other than the elimination of water competition," not only puts the burden on the carriers, but limits the reasons which are valid explanations of the increase by excluding as one of such "the elimination of water competition."

In order to make such increase the Commission must consent after hearing,

220 Kellogg Toasted Corn Flakes Co. v. Michigan Cent. R. Co., 24 I. C. C. 604; Re Lumber Rates to Ohio River Crossings, 25 I. C. C. 50, 59. In each of these cases the effectiveness of market competition was considered and decided.

221 Wright Wire Co. v. Pittsburg & L. E. Ry. Co., 21 I. C. C. 64, quoting Judge Cooley's opinion first construing the original fourth section; Gile & Co. v. Southern Pac. Co., 22 I.

C. C. 298, 302; Re Rates on Salt, 24 I. C. C. 192, 195; Edwards & Bradford Lumber Co. v. Chicago, B. & Q. R. Co., 25 I. C. C. 93, 95 holding that a route exceeding the short line by 15 per cent was a circuitous route. See also Fourth Section Application in the Southeast, 30 I. C. C. 153, 32 I. C. C. 61.

222 Re Transportation of Lime, 24 I. C. C. 170, 172.