books, papers, tariffs, contracts, agreements and documents relating to any matter under investigation." Such attendance of witnesses, and the production of such documentary evidence, may be required from any place in the United States, at any designated place of hearing. The claim that testimony may incriminate the witness is no excuse for not testifying, but the witness's testimony shall not be used against him on the trial of any criminal proceeding.258 Testimony may be taken by depositions at the instance of any party, or by order of the Commission.259 Witnesses summoned before the Commission are entitled to the same fees and mileage as are paid witnesses in the courts of the United States.260

The Commission is very liberal in its practice with reference to admitting testimony, "and," said Mr. Justice Lamar, speaking the opinion of the Supreme Court, "is not limited by the strict rules, as to the admissibility of evidence, which prevail in suits by private parties." In the same case, it was said: "But the statute gave the right to a full hearing, and that conferred the privilege of introducing testimony, and at the same time imposed the duty of deciding in accordance with the facts proved. A finding without evidence is arbitrary and baseless. All parties must be fully apprised of the evidence submitted or to be considered, and must be given opportunity to cross-examine witnesses, to inspect documents, and to offer evidence in explanation or rebuttal. ''261

* **

*

The same principles were applied by the Supreme Court in another case, in which it was indicated that parties were not bound by findings based upon specific investigation made in a case without notice to them.202

Any party may appear before the Commission and be heard, in person or by attorney. Every vote and official act

258 Sec. 12 of Act; Sec. 481, post; Sec. 3 of Elkins Act; Sec. post, 639; Compulsory Testimony Act, post, 662; Immunity of Witnesses Act, Sec. 661, post.

259 Sec. 12 of Act; Sec. 482, post. 260 Sec. 18 of Act; Sec. 536, post. 261 Int. Com. Com. v. Louisville &

N. R. Co., 227 U. S. 88, 57 L. Ed. 431, 33 Sup. Ct. 185, and cases cited; Atchison T. & S. F. Ry. Co. v. Spiller, 246 Fed. 1, 158 C. C. A. 227.

262 United States v. Baltimore & O. R. Co., 226 U. S. 14, 57 L. Ed. 104, 33 Sup. Ct. 5.

of the Commission shall be entered of record, and its proceedings shall be public at the request of either party. Any one of the members of the Commission may administer oaths and affirmations and sign subpoenas.263

§ 305. Proposed Reports.-Upon the suggestion of the writer hereof the Commission, in McCormick Co. v. S. P. Co., 37 I. C. C. 234, served the respective parties with a copy of the report proposed by the Attorney-Examiner. This practice then inaugurated proved helpful and later was generally adopted, and the Commission issued rules as follows:

"1. If oral argument before the presiding commissioner or examiner is desired he should be so notified at or before the hearing and may arrange to hear the argument at the close of the testimony within such limits of time as he may determine, having regard to other assignments for hearing before him. Such argument will be transcribed and bound with the transcript of testimony, and will be available to the Commission for consideration in deciding the case. The making of such argument shall not preclude oral argument before the Commission, or a division thereof, and application therefor may be made as hereinafter provided.

"2. Only one initial brief shall be filed by each party. The presiding commissioner or examiner shall fix for all parties the same time within which to file their briefs. Reply briefs are not permitted at this stage.

"3. After expiration of the time set for briefs, the examiner will prepare his proposed report containing the statement of the issues and facts and the findings and conclusions which he thinks should be made. This proposed report will be served by mailing copies to the parties or attorneys who appeared at the hearing or upon brief, except that in general investigations copies may also be mailed in the Commission's discretion to other parties whose appearances are noted of record.

"4. Within twenty days after service of the proposed report any party may file and serve, in the manner prescribed for briefs, exceptions to the examiner's proposed report and

263 Sec. 17 of Act; Sec. 531, post.

brief in support of the exceptions. Exceptions and brief should be contained in one print or document. Within ten days after the expiration of the time so fixed briefs in reply to the exception briefs may be filed and served, but will not be received later except under leave granted upon application therefor. Application for oral argument before the Commission or a division thereof may be made by any party filing exceptions or reply to exceptions and must accompany the exceptions or reply. Parties or Attorneys at El Paso, Tex., Salt Lake City, Utah, Spokane, Wash., or points west thereof, who appeared at the hearing or upon brief, will be allowed five days additional time for filing and serving exceptions, exception briefs and reply briefs respectively.

"5. Exceptions to the examiner's proposed report either as to statements of fact or matters of law must be specific. If exception is taken to matters of law or conclusions the points relied upon must be stated separately and clearly. If exception is taken to any statement of fact reference must be made to the pages or parts of the record relied upon and a corrected statement incorporated in the exception brief.

"6. In the absence of exceptions that are sustained or of ascertained error the statement of the issues and of the facts by the examiner will ordinarily be taken by the Commission as the basis of its report."

§ 306. Orders Relating to Rates and Practices. By formal complaint as hereinbefore stated, or on its own initiative in extension of a complaint, or without any complaint whatever, after full hearing, the Commission, when "of opinion" that any individual or joint rates or charges whatsoever demanded, charged or collected, or that any individual or joint classifications, regulations or practices are unjust or unreasonable or unjustly discriminatory or unduly preferential or prejudical, or otherwise violative of the Interstate Commerce Act, may prescribe joint and lawful rates, rules and charges. for the future as maximum rates or minimum or maximum and minimum, and may likewise prescribe just and reasonable regulations. And the Commission, the carriers failing to agree, may prescribe the divisions of joint rates.264 To do

264 Sec. 15 of Act; Secs. 488, and 493, post.

this, there must be a full hearing and the "opinion" of the Commission must be based upon evidence as in formal complaints.265 All orders of the Commission under this authority shall take effect in some reasonable time, to be prescribed by the Commission, not less than thirty days.

§ 307. Suspension of Rates.-A new individual or joint rate, fare, or charge, or a new individual or joint classification, regulation or practice affecting any rate, fare, or charge, may, upon complaint, or on the initiative of the Commission without complaint, and without answer or other formal pleadings, be suspended by the Commission, and when the suspension is had, the Commission must enter upon a hearing concerning the propriety of such rate, fare, charge, classification, regulation or practice. When the suspension is ordered, a statement in writing of the Commission's reasons therefor must be filed with the schedule involved and delivered to the carrier or carriers affected thereby.

Formerly the law authorized two periods of suspension. The first suspension could not be for a longer time than one hundred and twenty days. Where the hearing could not be completed in that time, the time could be further extended for not exceeding thirty days. The law (paragraph (7) of Section 15 of the Act) was amended in 1927 so as to extend the maximum suspension period to seven months. The hearing and decision in suspension cases must be given preference over all other questions pending before the Commission and must be decided as speedily as possible.

"At any hearing involving a rate fare or charge increased after January 1, 1910, the burden to show that the increased rate fare or charge or proposed increased rate fare or charge is just and reasonable shall be upon the carrier, and the Commission shall give to the hearing and decision of such questions preference over all other questions pending before it and decide the same as speedily as possible. '266

265 Sec. 304, ante.

266 Sec. 15 of Act as amended by Act of June 18, 1910; Secs. 494, 495, post. The Commission in Tariff Cir

cular 18-A, p. 21, prescribed as a rule for carriers: That when a rate is suspended, the carrier must immediately file with the Commission a statement

Any new practice which results in increasing the rate is within the provision fixing the burden of proof on the carrier, although it would seem that a new tariff provision not affecting the rate, while subject to suspension, would not be within the burden-of-proof clause.2

267

Ordinary cases are given, in practice, a docket number. Suspension cases are distinguished as Investigation and Suspension (I. & S.) Dockets and are given consecutive numbers.

§ 308. Practice in Suspension Cases Where There Exist Intrastate Rates Lower Than Proposed Interstate Rates.— When it is made to appear that proposed increased rates, although shown to be just and reasonable under Section 1 of the Act, will, if they become effective, be higher than intrastate rates for related and competitive hauls, what should be the order of the Commission? In some states, maximum intrastate rates are prescribed by legislative act, and the maximum fixed cannot be exceeded until legislative authority is obtained. In other states, rates are fixed by a commission, in some of which proposed increases may be suspended by the Commission under a practice similar to that obtaining with the Interstate Commerce Commission; in others of such states permission must be obtained from the state commission before publishing the increased rates. Obviously, it is not always legally possible for carriers simultaneously to advance interstate and intrastate rates. If increases are denied in one class of rates because not effective in the other class, no increase can ever be made, and the state authority, by refusing advances in the state rates, could fix the limit of interstate rates. This may not legally be done.268 The answer to the foregoing question was made by the Commission as follows:260 "The protestants contend that, should the proposed change

stating that fact. Where only a part of a tariff is suspended, the carrier must file with the schedule suspended a copy of the suspending order. When a suspension is vacated, a statement of that fact must likewise be filed by the carrier. This rule is continued in Tariff Circular No. 20, Rule 9(k).

267 Re Advances in Rates on Soft

Coal, 23 I. C. C. 518, 519; Re Advances on Lumber and Forest Products, 21 I. C. C. 455, 456. See also Sec. 271, ante.

268 Houston, E. & W. Tex. Ry. Co. v. U. S., 234 U. S. 342, 58 L. Ed. 1341, 34 Sup. Ct. 833.

269 Rates on Poultry in Western Trunk Line Territory, 32 I. C. C. 380.