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§ 374. Mistake of Law.-While the law in force prior to the enactment of the Hepburn Amendment made the order of the Commission only prima facie lawful, even under that law force was given the findings of the Commission upon disputed questions of fact. The present law gives the courts no jurisdiction over questions involving the credibility of witnesses or the weight of evidence.

In the Yellow Pine case,390 the Supreme Court referred to former cases, and in summing up the decisions therein discussed, said: "In all these cases, therefore, there was a single, distinct and dominant proposition of law which the Commission had rejected and the exact influence of which on its decisions could not be estimated," and even under the then statute it was held that the orders of the Commission would not be disturbed because the Commission did not adopt certain presumptions of mixed law and fact put forward as factors in determining the reasonableness of a rate, and the court there stated as a suggestive applicable principle to the conclusions of the Commission that "such conclusions of fact were to be arrived at looking at the matter broadly and applying common sense to the facts that are proved," and, said the court: "This court has ascribed to them [the findings and conclusions of the Commission] the strength due to judgments of a tribunal appointed by law and informed by experience!"

The Commission's orders were set aside, because the Commission held that under the law a carrier was not entitled to a profit for a service in stopping hay for purposes of treatment or reconsignment;391 because it struck down a reasonable.

35 Sup. Ct. 429; Norfolk & W. Ry. Co. v. Conley, 236 U. S. 605, 59 L. Ed. 745, 35 Sup. Ct. 437.

390 Illinois C. R. Co. v. Int. Com. Com., 206 U. S. 441, 51 L. Ed. 1128, 27 Sup. Ct. 700; discussing Texas & Pac. Ry. Co. v. Int. Com. Com., 162 U. S. 197, 40 L. Ed. 940, 16 Sup. Ct. 666; Cincinnati, N. O. & T. P. Ry. Co. v. Int. Com. Com., 162 U. S. 184, 40 L. Ed. 935, 16 Sup. Ct. 700; Int. Com. Com. v. Alabama M. Ry. Co., 168 U.

S. 144, 42 L. Ed. 414, 18 Sup. Ct. 45;
Louisville & N. R. Co. v. Behlmer, 175
U. S. 648, 44 L. Ed. 309, 20 Sup. Ct.
209; East Tenn., Va. & Ga. Ry. Co. v.
Int. Com. Com., 181 U. S. 127, 45 L.
Ed. 719, 21 Sup. Ct. 516. See also
Cincinnati, etc., R. Co. v. Int. Com.
Com., 206 U. S. 142, 51 L. Ed. 995, 27
Sup. Ct. 648.

391 So. R. Co. v. St. Louis Hay & Grain Co., 214 U. S. 297, 53 L. Ed. 1004, 29 Sup. Ct. 678.

terminal charge on the erroneous ground that, taken with a prior unreasonable charge, the total charge was too high;392 because it required a switch connection when no one authorized by the statute filed application therefor;393 because, as was held by the court, it determined the lawfulness of a rate from an application of the law of estoppel;394 because it held that a payment of an elevator allowance was illegal;395 because an allowance for terminal facilities was held illegal;396 because there was no evidence.397

Other illustrations of mistakes of law by the Commission are misconstruction of a tariff,398 applying a wrong rule of law to admitted facts,399 and misapplying the statute of limitations.400

Where the question involved in a suit to set aside the order of the Commission is one of fact, the principle stated by the Supreme Court is, "The outlook of the Commission and its powers must be greater than the interest of the railroad, or of that which may affect those interests. It must be as comprehensive as the interest of the whole country. If the problems which are presented to it, therefore, are com

392 Int. Com. Com. v. Stickney, 215 U. S. 98, 54 L. Ed. 112, 30 Sup. Ct. 66.

393 Int. Com. Com. v. Delaware, L. & W. Ry. Co., 216 U. S. 531, 54 L. Ed. 605, 30 Sup. Ct. 415.

394 Southern Pac. Co. v. Int. Com. Com., 219 U. S. 433, 55 L. Ed. 283, 31 Sup. Ct. 288. See also Lemon Rate Case, Atchison, T. & S. F. Ry. Co. v. Int. Com. Com., 190 Fed. 591, Opinion Com. Ct. No. 20, p. 83, and 203 Fed. 56, Opinion Com. Ct. No. 61, p. 537. 395 Int. Com. Com. v. Diffenbaugh, 222 U. S. 42, 56 L. Ed. 83, 32 Sup. Ct. 22. The Commission had put its finding on the fact that unjust discrimination existed, but evidence was undisputed and the conclusion from the admitted facts was one of law. Traffie Bureau Merchants Ex. of St. Louis

v, Chicago, B. & Q. R. Co., 14 I. C. C. 317, 510, 551.

396 Sugar Literage Case, United States v. Baltimore & O. R. Co., 231 U. S. 274, 58 L. Ed. 218, 34 Sup. Ct. 75, affirming Baltimore & O. R. Co. v. United States, 200 Fed. 779; Opinion Com. Ct. No. 38, p. 499.

397 Florida E. C. R. Co. v. U. S., 234 U. S. 167, 58 L. Ed. 1267, 34 Sup. Ct. 867.

398 United States v. Penn. R. Co., 242 U. S. 208, 61 L. Ed. 267, 37 Sup. Ct. 95.

399 Lehigh V. R. R. Co. v. United States, 243 U. S. 412, 61 L. Ed. 820, 37 Sup. Ct. 434.

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plex and difficult, the means of solving them are as great and adequate as can be provided."401 (See Section 371 and notes.)

§ 375. Lack of Jurisdiction. The powers of the Interstate Commerce Commission find their limitation as well as their grant in the statute, and should the Commission attempt to exercise any power not contained in the grant, its action would be void. The old law gave power to the Commission to establish through routes and joint rates applicable thereto when no reasonable through route existed. The non-existence of a reasonable through route was a necessary prerequisite to the exercise of the power to prescribe through routes, and whether or not this jurisdictional prerequisite existed was a question which the courts could determine, and when that question was found against the jurisdiction, the order of the Commission was set aside. 402 Under the present law the power of the Commission is broader and discretion is given to established through routes "as the circumstances and conditions developed in each inquiry may seem to require."'403

That the Commission has power to regulate transportation over the terminals at Galveston, when the transportation is within the Interstate Commerce Act, has been determined.404 Orders held valid requiring the same rates on fuel coal as on commercial coal;405 regulating the distribution of cars;406

401 Int. Com. Com. v. Chicago, R. I. & P. R. Co., 218 U. S. 88, 54 L. Ed. 946, 30 Sup. Ct. 651. For a full discussion of the right of the Commission to exercise its judgment on questions of fact, see Illinois Cent. R. Co. v. Int. Com. Com., 206 U. S. 441, 51 L. Ed. 1128, 27 Sup. Ct. 700.

402 Int. Com. Com. V. Northern Pac. Ry. Co., 216 U. S. 538, 54 L. Ed. 608, 30 Sup. Ct. 417; and so where no jurisdiction existed over a street railroad, Omaha and C. B. Street Ry. Co. v. Int. Com. Com., 230 U. S. 324, 57 L. Ed. 1501, 33 Sup. Ct. 890.

403 Crane Iron Works V. United States, Opinion Com. Ct., No. 55, p.

453, 209 Fed. 238; Truckers Transfer Co. v. Charleston & W. C. Ry. Co., 27 I. C. C. 275, 277. See Sec. 127, ante, for a discussion of the statutory limitations on the Commission's power to establish through routes.

404 Southern Pac. Terminal Co. v. Int. Com. Com., 219 U. S. 498, 55 L. Ed. 310, 31 Sup. Ct. 279.

405 Int. Com. Com. v. Baltimore & O. R. Co., 225 U. S. 326, 56 L. Ed. 1107, 32 Sup. Ct. 742.

406 Int. Com. Com. v. Illinois C. R. Co., 215 U. S. 452, 54 L. Ed. 280, 30 Sup. Ct. 153; Int. Com. Com. v. Chicago & A. R. Co., 215 U. S. 479, 54 L. Ed. 291, 30 Sup. Ct. 163.

reducing rates; 407 regulating terminal charges;408 carload rating for bulked shipments;409 reports and accounting;410 precooling charges.411

§ 376. The Substance and Not the Form of the Finding Determines. Prescribing rates, rules and regulations for the future is a legislative act.412 Congress has prescribed the general rules of action under which the Commission shall proceed, leaving to the Commission the application of those rules to particular situations and circumstances.413

That the power delegated to the Commission may be exercised within the form delegated does not deprive the courts of jurisdiction to review its orders if such orders be in substance a violation of the delegated authority, for "the substance and not the shadow determines the validity of the exercise of the power. "414

In the language of a Circuit Judge, "The power is vested in and the duty is imposed upon the circuit courts [now the

407 Int. Com. Com. v. Chicago, R. I. & P. R. Co., 218 U. S. 88, 54 L. Ed. 946, 30 Sup. Ct. 651, and Int. Com. Com. v. Union Pac. R. Co., 222 U. S. 541, 56 L. Ed. 308, 32 Sup. Ct. 108; Int. Com. Com. v. Louisville & N. R. Co., 227 U. S. 88, 57 L. Ed. 431, 33 Sup. Ct. 185.

408 Southern Pac. Terminal Co. v. Int. Com. Com., 219 U. S. 498, 55 L. Ed. 310, 31 Sup. Ct. 279.

409 Int. Com. Com. v. Delaware, L. & W. Ry. Co., 220 U. S. 235, 55 L. Ed. 448, 31 Sup. Ct. 392.

410 Int. Com. Com. V. Goodrich Transit Co., 224 U. S. 194, 56 L. Ed. 729, 32 Sup. Ct. 436; Kansas City So. Ry. Co. v. United States, 231 U. S. 423, 58 L. Ed. 296, 34 Sup. Ct. 125.

411 Atchison, T. & S. F. Ry. Co. v. United States, 232 U. S. 199, 58 L. Ed. 568, 34 Sup. Ct. 291.

412 Hooker v. Int. Com. Com., 188 Fed. 242, and cases cited at p. 252, Opinion Com. Ct. No. 5, p. 33; re

versed by Sup. Ct. on the ground that when relief is denied a shipper by the Commission the courts have no jurisdiction, Hooker v. Knapp, 225 U. S. 302, 56 L. Ed. 1099, 32 Sup. Ct. 769. See also Baer Bros. Mer. Co. v. D. & L. G. R. Co., 233 U. S. 479, 58 L. Ed. 1055, 34 Sup. Ct. 641.

413 Int. Com. Com. V. Goodrich Transit Co., 224 U. S. 194, 210, 56 L. Ed. 729, 735, 32 Sup. Ct. 436; Kansas City So. Ry. Co. v. United States, 231 U. S. 423, 58 L. Ed. 296, 34 Sup. Ct. 125, 131; Louisville & N. R. Co. v. United States, 245 U. S. 463, 62 L. Ed. 400, 38 Sup. Ct. 141.

414 Int. Com. Com. v. Illinois C. R. Co., 215 U. S. 452, 54 L. Ed. 280, 30 Sup. Ct. 153, citing Postal Cable-Tel. Co. v. Adams, 155 U. S. 688, 698, 39 L. Ed. 311, 15 Sup. Ct. 360. See also Southern Pac. Co. v. Int. Com. Com., 219 U. S. 433, 55 L. Ed. 283, 31 Sup. Ct. 288.

which,

district courts] to relieve from orders though in form within its [the Commission's] delegated power, evidence so unreasonable an exercise of it that they are in substance beyond it. '415

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§ 377. Disregard of the Legal Effect of Undisputed Testimony. Where there are disputed questions of fact, as has been stated many times, the jurisdiction of the Commission to determine what is the truth is exclusive and its conclusions are not subject to review by the courts.416 Carriers, however, under the law at present have the primary right to make rates. If, after hearing, such rates are shown to be unreasonable or otherwise unlawful, the Commission may set them aside and require the substitution of just and lawful rates. If there is no evidence of the unlawfulness of an existing rate, the Commission has no power to prescribe another and different rate. When there is no disputed question of fact, the legal effect of evidence is a question of law over which the courts have jurisdiction,417 and a finding of the Commission without evidence or contrary to the legal effect of undisputed evidence is void.418 In discussing the general question, Mr. Justice Lamar, delivering the opinion of the Supreme Court, said: "The reasonableness of rates cannot be proved by categorical answers," and after stating facts considered by the Commission, he continued, "with that sort of evidence before them, rate experts of acknowledged ability and fairness, and each independently of the other, may not have reached identically the same conclusion. We do not know whether the results would have been approximately the same. For there is no possibility of solving the question as though it were a mathematical problem to which there could only be one correct answer. Still there was in this mass of facts that, out of which, experts could have named a rate. The

415 Peavy v. Union Pac. R. Co., 176 Fed. 409, 418; on appeal modified on other points: Int. Com. Com. v. Diffenbaugh, 222 U. S. 42, 56 L. Ed. 83, 32 Sup. Ct. 22.

416 Int. Com. Com. v. Delaware, L. & W. Ry. Co., 220 U. S. 235, 55 L. Ed. 448, 31 Sup. Ct. 392.

417 Int. Com. Com. v. Louisville & N. R. Co., 227 U. S. 88, 57 L. Ed. 431, 33 Sup. Ct. 185. (See, ante, Note 375.)

418 Atchison, T. & S. Ry. Co. v. Int. Com. Com. and the United States, 188 Fed. 229, Opinion Com. Ct. No. 2,

p. 3.

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