eral applications of carriers, including that [ Ct. 370, 59 L. Ed. 616; Los Angeles Switchof March 1, 1916, authorizing the 65-cent ing Case, 234 U. S. 294, 311, 34 Sup. Ct. 814, Pittsburgh-Seattle rate; and the carriers were directed to reduce the degree of discrimination then existing in favor of Pacific Coast ports as against intermediate territory. Upon entry of this order the carriers filed tariffs effective September 1, 1916, raising, among others, the Pittsburgh-Seattle iron and steel rates from 65 cents to 94 cents. Promptly, on August 4, 1916, Skinner & Eddy Corporation protested, requested that the tariffs effective September 1, 1916, raising, had thereon, and alleged that the proposed increase violated, as later set forth in its bill of complaint, the last paragraph of the fourth section. Their request was not then granted. Thereafter, by action of the commission and the carriers, not necessary to detail, the effective date of the tariff fixing the 94-cent rate was postponed to December 30, 1916; and meanwhile these tariffs were, with consent of the commission, canceled upon the understanding that new tariffs fixing a 75-cent rate effective on that day would be filed. When the 75-cent rate was filed, Skinner & Eddy Corporation again protested on the same ground, and made, as theretofore, the same request for a suspension of the tariffs and a hearing; and again the request was not granted. 58 L. Ed. 1319; Kansas City Southern Ry. Co. v. United States, 231 U. S. 423, 440, 34 Sup. Ct. 125, 58 L. Ed. 296, 52 L. R. A. (N. S.) 1; Procter & Gamble Co. v. United States, 225 U. S. 282, 297, 298, 32 Sup. Ct. 761, 56 L. Ed. 1091; Interstate Commerce Commission v. Union Pacific Railroad Co., 222 U. S. 541, 32 Sup. Ct. 108, 56 L. Ed. 308. But plaintiff does not contend that 75 cents is an unreasonably high rate, or that it is discriminatory, or that there was mere error in the action of the commission. The contention is that the commission has exceeded its statutory powers; and that, hence, the order is void. In such a case the courts have jurisdiction of suits to enjoin the enforcement of an order, even if the plaintiff has not attempted to secure redress in a proceeding before the commission. Interstate Com*merce Commission v. Diffenbaugh, 222 U. S. 42, 49, 32 Sup. Ct. 22, 56 L. Ed. 83; Louisiana & P. Ry. Co. v. United States (Com. C.) 209 Fed. 244, 251; Atlantic Coast Line R. Co. v. Interstate Commerce Commission (Com. C.) 194 Fed. 449, 451. Sacramento Case, supra, was a case of this character. Compare Interstate Commerce Commission v. Louisville & Nashville Railroad Co., 227 U. S. 88, 92, 33 Sup. Ct. 185, 57 L. Ed. 431; Southern Pacific Co. v. Interstate Commerce Commission, 219 U. S. 433, 31 Sup. Ct. 288, 55 L. Ed. 283. The District Court properly assumed jurisdiction of this suit. [1] First. The defendants contend that the District Court did not have jurisdiction of the subject-matter of this suit; because orders entered in a fourth section proceeding [2] Second. The defendants contend, also, cannot be assailed in the courts; at least, that if the subject-matter was within the not until after a remedy has been sought un- jurisdiction of a District Court of the United der sections 13 and 15 of the Act to Regulate States, it was not within that of Oregon. Commerce (Comp. St. §§ 8581, 8583). This The objection is based upon Act Oct. 22, 1913, contention proceeds apparently upon a misap-C. 32, 38 Stat. 208, 219 (Comp. St. § 994), which declares: "The venue of any suit hereafter brought to enforce, suspend, or set aside, in whole or in part, any order of the Interstate Commerce Commission shall be in the judicial district wherein is the residence of the party or any of the parties upon whose petition the order was made." prehension of plaintiff's position. If plaintiff had sought relief against a rate or practice alleged to be unjust because unreasonably high or discriminatory, the remedy must have been sought primarily by proceedings before the commission, Loomis v. Lehigh Valley Railroad Co., 240 U. S. 43, 50, 36 Sup. Ct. 228, 60 L. Ed. 517; Texas & Pacific Ry. And it is asserted that the parties upon Co. v. American Tie & Timber Co., 234 U. S. whose petition the order was made are the 138, 146, 34 Sup. Ct. 885, 58 L. Ed. 1255; Merchants' Association of Spokane, a resident The Minnesota Rate Cases, 230 U. S. 352, of the Eastern district of Washington, and 419, 33 Sup. Ct. 729, 57 L. Ed. 1511, 48 L. the Railroad Commission of Nevada, a resiR. A. (N. S.) 1151, Ann. Cas. 1916A, 18; Rob- dent of the district of Nevada. The applicainson v. Baltimore & Ohio Railroad Co., 222 tions of these parties, filed in March, 1916, U. S. 506, 32 Sup. Ct. 114, 56 L. Ed. 288; were doubtless instrumental in securing a Baltimore & Ohio Railroad Co. v. Pitcairn reopening of the proceedings which resulted Coal Co., 215 U. S. 481, 30 Sup. Ct. 164, 54 in the order complained of. But the proceedL. Ed. 292; and the finding thereon would ings in which the order was made were the have been conclusive, unless there was lack | original application of carriers for relief unof substantial evidence, some irregularity in der the fourth section. The report and the orthe proceedings, or some error in the appli- der are entitled, "In the Matter of Reopencation of rules of law; Manufacturers' Ry. ing Fourth Section Applications." One of Co. v. United States, 246 U. S. 457, 482, 38 the carriers which had made such application Sup. Ct. 383, 62 L. Ed. 831; Pennsylvania Co. | for relief from the provisions of the fourth v. United States, 236 U. S. 351, 361, 35 Sup. section was a resident of Oregon, namely, the Oregon-Washington Railroad & Navigation | low rates. The common law did not recogCompany; and, as it was joined as defend- nize that the rate of a common carrier ant in the suit, the District Court of Oregon bad jurisdiction over the parties. [3] *Third. The main contention of plaintiff is that, as the carriers had in 1916 reduced the rate from 80 cents to 65 cents, neither the carriers nor the commission had power to increase the rate without a prior finding by the commission upon proper hearing “that such proposed increase rests upon changed conditions other than the elimination of water competition," and that no such hearing had been had or finding made. might be so low as to constitute a wrong; and Congress has declined to declare such a rule. Despite the original Act to Regulate Commerce and all amendments, railroads still have power to fix rates as low as they choose and to reduce rates when they choose. The commission's power over them in this respect extends no further than to discourage the making of unduly low rates by applying deterrents. One such deterrent is found in the fact that low rates, because voluntarily established by the carrier, may be accepted by the commission as evidence that other rates, actual or proposed, for comparable service are unreasonably high. Board of Trade of Carrollton, Ga., v. Central of Georgia Ry. Co., 28 Interst. Com. Com'n R. 154, 164; Sheridan Chamber of Commerce v. Chicago, Burlington & Quincy Railroad Co., 26 Interst. Com. Com'n R. 638, 647. Compare Louisville & Nashville Railroad Co. v. United States, 238 U. S. 1, 11, et seq., 35 Sup. Ct. 696, 59 L. Ed. 1177. The voluntary making of unremuneratively low rates in impor In construing this provision it is important to bear in mind the limits of the commission's control over rates. Neither the Act to Regulate Commerce nor any amendment thereof has taken from the carriers the power which they originally possessed, to initiate rates; that is, the power, in the first instance, to fix rates or to increase or to reduce them.2 Legislation of Congress confers now upon the commission ample powers to prevent by direct action the exaction of excessively high rates. The original act, proceeding upon the common-law rule which prohib-tant traffic may also tend to induce the comits public carriers from charging more than reasonable rates, gave the commission power to declare illegal one unduly high; but even after such a determination the commission lacked the power to fix the rate which should be charged. Cincinnati, New Orleans & Texas Pacific Ry. Co. v. Interstate Commerce Commission, 162 U. S. 184, 196, 197, 16 Sup. Ct. 700, 40 L. Ed. 935; Interstate Commerce Commission v. Cincinnati, New Orleans & Texas Pacific Ry. Co., 167 U. S. 479, 17 Sup. Ct. 896, 42 L. Ed. 243; Interstate Commerce Commission v. Alabama Midland Ry. Co., 168 U. S. 144, 161, 18 Sup. Ct. 45, 42 L. Ed. 414. Effective control was not secured until the act of 1906 (Act June 29, 1906, c. 3591, 34 Stat. 584) had given to the commission the *power to fix, after such hearing, the rate which should be charged, Interstate Commerce Commission v. Humbolt Steamship Co., 224 U. S. 474, 483, 32 Sup. Ct. 556, 56 L. Ed. 849; and the act of 1910 had given it power to suspend, during investigation, tariffs for new rates, and placed upon the carrier the burden of proof to establish the reasonable ness of the increased rates, M. C. Kiser Co. v. Central of Georgia Ry. Co. (D. C.) 236 Fed. 573. Congress, however, steadfastly withheld from the commission power to prevent by direct action the charging of unreasonably By Act of August 9, 1917, c. 50, § 4, 40 Stat. 270, 272 (Comp. St. 1918, § 8583), it was provided that until January 1, 1920, no increased rate or fare shall be filed except after approval thereof has been secured from the commission On the 28th day of December, 1917, the government took control of the railroads, as a war measure, under Act of August 29, 1916, c. 418, 39 Stat. 619, 645 (Comp. St. § 1974a). Proclamation of December 26, 1917, Proclamations 1917-1918, pp. 89, 90. mission to resist appeals of carriers for general rate increases on the ground of financial necessities. But the main source of the commission's influence to prevent excessively low rates lies in its power to prevent unjust discrimination. Compare Houston, East & West Texas Ry. Co. v. United States, 234 U. S. 342, 34 Sup. Ct. 833, 58 L. Ed. 1341. The order prohibiting the unjust discrimination, however, leaves the carrier free to continue the lower rate; the compulsion being that if the low rate is retained, the rate applicable to the locality or article discriminated against must be reduced. That is, the carrier may remove the discrimination either by raising the lower rate to the relative level of the higher, or by lowering the higher to the relative level of the lower, or by equalizing conditions through fixing rates at some intermediate point. American Express Co. v. Caldwell, 244 U. S. 617, 624, 37 Sup. Ct. 656, 61 L. Ed. 1352. A special group of cases in which the commission may indirectly prevent unduly low rates through its power to prevent unjust discrimination is that provided for by the long and short haul clause. It was enacted to remedy one large class of discriminations by creating a legislative presumption that the charge of more for a short haul under substantially similar circumstances and conditions than for a longer distance over the same line in the same direction was unjust. As originally enacted, the provision was construed to authorize the carrier to determine primarily whether the required dissimilarity Subject only to the requirement of notice as provided in section 6 of the Act to Regulate Commerce, as amended (Comp. St. § 8569). *566 of circumstances and conditions existed and also to authorize the acceptance of competitive conditions as a justification of a lower rate for the longer distance. So construed, the provisions proved inefficacious, and the act was amended in 1910 by striking out the "substantially similar circumstances and conditions" clause and making the prohibition absolute except to "the extent to which such designated common carrier may be relieved from the operation of this section" by the commission. Inter-Mountain Rate Cases, supra. But the lack of power to pre vent by direct action excessively low rates remains; the carrier still having the option, if relief from the operation of the fourth section is denied, *to keep in effect the low rate to the more distant point by lowering the rates to intermediate points. The last paragraph of section 4, here in question, which was added by the act of 1910, was designed to prevent the railroads from killing water competition by making excessively low rates. But again Congress re frained from prohibiting the carrier to reduce the rate and declined to confer upon the commission power to prevent by direct action a reduction. The act still leaves the carrier absolutely free to make as low a rate as it chooses, and merely provides another deterrent, in declaring that, if the rate is once reduced in competition with a water route or routes, it cannot thereafter be increased, “unless after hearing by the Interstate Commerce Commission it shall be found that such proposed increase rests upon changed conditions other than the elimination of water competition." This provision may become operative in any case where there has been competition between a railroad and a water line, inland or coastwise. But we have now to determine merely whether the prohibition applies where the rates in question were reduced with the approval of the commission given after hearing, by order entered upon application of the carrier for relief from the operation of the fourth section. The language of the paragraph is general and read alone might compel that construction. But it may not be read alone. It must be construed in the light of the purpose of its enactment, of the earlier paragraphs of section 4, and of other sections in the Act to Regulate Commerce designed to prevent unjust discrimination. The specific purpose of section 4 was to prevent discrimination by charging less for the longer haul, unless in the opinion of the commission the circumstances make such action just. Discrimination, just when sanctioned, may become most unjust. Recognizing this fact, Congress provided that the judgment of the commission should be exercised *"from time to time" to determine "the extent to which [the] carrier may be relieved from the operation of this section." In other words, the leave granted is not for all time. It is revocable at any time, either because it was improvidently granted or because new conditions have arisen which make its continuance inequitable. The specific purpose of the last paragraph of section 4 is to ensure and preserve water competition; to prevent competition that kills. A reduction made under the authority of a fourth section order after full hearing must have been found by the commission to have been reasonably necessary in order to preserve competition between the rail and the water carrier. A reduction so made is not within the reason of the prohibition declared by the last paragraph. Transportation conditions are not static; the oppressor of to-day may to-morrow be the oppressed. And in order to preserve competition between rail and water carriers it is necessary that the commission's power to approve a modification of rates be as broad as it is to approve a modification in order to prevent unjust discrimination. Even a literal reading of section 4 would not require that prohibition contained in the last paragraph be extended to reductions made with the approval of the commission. The preceding paragraph declares that: "The commission may from time to time prescribe the extent to which such designated common carrier may be relieved from the operation of this section." The last paragraph is a part of the section. Why should not the commission's power to relieve be extended to it? The construction contended for by plaintiff would rather ensure monopoly than preserve competition. If a rail rate reduced in competition with a water route for the avowed purpose of preserving competition by rail should result, contrary to the commission's expectations, in eliminating the water competition, because so low as to drive the water carrier out of business, then the pro*hibitively low rate would have to be continued permanently and other water competition be thereby prevented from arising; unless, perchance, some changed condition should develop which might make removal of the bar possible. Or, if the reduction in the rail rate, sanctioned by the commission under the fourth section as not unjustly discriminating against intermediate points, because forced upon the rail carriers by oppressive water competition designed to destroy its business to the port, should become thereafter unjustly discriminatory, because the water carrier, destroyed by its own rate cutting, abandoned the route, still the low rail rate and resulting discrimination would have to continue. Only compelling language could cause us to impute to Congress the intention to produce results so absurd; and the language of the last paragraph of section 4 is clearly suscepti *668 ble of the more reasonable construction contended for by defendants. (249 U. S. 571) STANDARD COMPUTING SCALE CO., Lim- (Argued March 14, 1919. Decided May 5, 1919.) No. 228. . COMMERCE 57 WEIGHTS AND MEASURES So-called "specifications," as to automatic computing scales, appearing in "bulletin of instruction and information to dealers and weights and measures officials" published and distributed by state superintendent of weights and measures, under authority of Laws N. Y. 1914, c. 521, held not a "regulation" or "law," within the prohibition of the federal Constitution as to state legislation; their function being educational, and at most advisory. [4] Fourth. The defendants further contend that, even if the prohibition of the last paragraph of section 4 be construed to apply also where the reduction was made with the authority of the commission, the increase of the Pittsburgh-Seattle rate to 75 cents is valid, because the finding of the commission complies with the prescribed condition that the increased rate must rest "upon changed conditions other than the elimination of water competition." It found in terms that: "The conditions formerly existing have materially changed;" that "the withdrawal of boats from this [coast to coast] service has not been on account of the rates made by the rail carriers with which the boats compete, but on account of slides in the Panama Canal and the extraordinary rise in ocean freights;" that the substantial disappearance of water competition was merely temporary; that competing water carriers "announced their intention ultimately to return to this service;" and "that the time of such return depended in *part upon the measure of the rates they would be able to secure for this service in competition with the rail lines." It is clear that the changed conditions so found are something other than the "eliminaSuit by the Standard Computing Scale tion of water competition" which Congress Company against John F. Farrell, State Suintended should not justify raising the re-perintendent of Weights and Measures of the duced rates. Compare American Insulated State of New York. Bill dismissed (242 Fed. Wire & Cable Co. v. Chicago & Northwest-87), and plaintiff appeals. Affirmed. ern Ry. Co., 26 Interst. Com. Com'n R. 415, 416. [5] Fifth. The plaintiff attacks, however, the validity of the order of June 5, 1916 (amended July 13, 1916) also on the ground that it was not made upon application of the carrier-insisting that application by the carrier is not only a prerequisite to the orig inal granting of relief under the fourth section, but also to the modification from time to time by the commission of the relief afforded. This court expressed in the Sacramento Case, supra, 242 U. S. at page 187, 37 Sup. Ct. 24, 61 L. Ed. 233, its doubt whether such application was a prerequisite even to the original granting of relief. It is clear that application by the carrier is not a prerequisite to modification. As shown above, orders granting relief under the fourth section are not grants in perpetuity. Neither a carrier nor a favored community acquires thereby vested rights. Necessarily implied in each such order is the term, "until otherwise ordered by the commission"; and the original application is always subject to be reopened, as it was here. The District Court did not err in dismissing the bill (and supplemental bill) on the merits; and its decree is Affirmed. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Law; Regulation.] Appeal from the District Court of the United States for the Southern District of New York. Mr. H. C. Smyth, of New York City (Messrs. C. Scofield and Frederick W. Bisgood, of New York City, of counsel), for appellant. Messrs. Charles D. Newton, of Geneseo, N. Y., and Edward G. Griffin, Deputy Atty. Gen., of Albany, N. Y., for appellee. *Mr. Justice BRANDEIS delivered the opinion of the Court. By the statutes of New York a sealer of weights and measures is appointed in every county and every city by the local authorities, with the duty, among other things, to keep safely the standards and to seal and mark such weights as correspond with the standards in his possession. The statutes provide also for a state superintendent of weights and measures with, among other things, a like duty to keep the state standards, and "where not otherwise provided by law" to "have a general supervision of the weights, measures and measuring and weighing devices of the state, and in use in the state." General Business Law of New York (Consol. Laws, c. 20) §§ 11-15; Laws 1909, c. 25, amended by Laws 1910, c. 187. Under a specific appropriation he publishes and distributes "bulletins of instruction and infor For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *572 mation to dealers, and weights and measures Co. v. South Carolina, 240 U. S. 305, 318, officials." Laws 1914, c. 521, p. 2093. In 36 Sup. Ct. 293, 60 L. Ed. 658. Thereupon the bulletin for August, 1914, there appeared, the case was brought here by direct appeal among other matter, the following item: under section 238 of the Judicial Code (Comp. St. § 1215). "Specifications. "Automatic Computing Scales. "All combination spring and lever computing scales must be equipped with a device which will automatically compensate for changes of temperature at zero balance and throughout the whole range of weight graduations." The Standard Company manufactures a combination spring and lever computing scale which was then being used and sold in New York. It is equipped with a compensating device which is not automatic. Because of these "specifications," some county and city sealers of weights neglected to seal scales of plaintiff's make and warned scale users to discontinue the use thereof. A state inspector, who was a subordinate of the state superintend*ent, also marked some of these scales "slow and faulty." As a re sult, the Standard Company's business in New York was injured; sales diminished and collections for scales theretofore sold became difficult. The Standard Company contends that its scales with a mechanical compensating device are at least as trust worthy as those of its competitor with the automatic device; and it presented these views to State Superintendent Farrell, both before the "specifications" were issued and thereafter. Failing to secure a withdrawal of the "specifications," it brought, in February, 1915, this suit in the District Court of the United States for the Southern District of New York against the state superintendent, setting forth, in substance, the facts above stated and praying that the issuing of the "specifications," which it termed a "rule," be declared an invalid exercise of the police power of the state, and their enforcement enjoined on the ground that the rule violates the federal Constitution, in that it impairs the obligation of contracts, interferes with interstate commerce, abridges the privileges and immunities of a citizen, deprives the plaintiff of property without due process, and denies to it equal protection of the laws. An answer was filed, and upon full hearing on the evidence the bill was dismissed on the merits. 242 Fed. 87. The Circuit Court of Appeals affirmed the decree; but, at appellant's request, the mandate was later withdrawn, and the appeal dismissed for want of jurisdiction, because it appeared that the jurisdiction of the District Court had been invoked solely under section 24, par. 14, of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1092 [Comp. St. § 991 (14)]), on the ground that the defendant's "rule" was unconstitutional. Carolina Glass No question is made as to the constitutionality of the statute creating the office of state, attack is upon the "specifica*tions" in the superintendent and defining his duties. The bulletin which plaintiff assumes are a regulation; that is, a law. Its contention is that the so-called "rule" is not a proper exercise of the police power, and is void, because it is arbitrary and unreasonable, because it unjustifiably discriminates against plaintiff's product, and because it interferes with interstate commerce. The claim that it impairs the obligation of contracts is not now insisted upon. The "specifications" were not published as of action to be enforced by the power of the a regulation purporting to prescribe a course state. They embody, as the evidence shows, the result of prolonged investigation and extensive experimentation, and formulate the conclusion reached by the state superintendent that every known automatic computing scale without an automatic compensating device is likely to mislead the customer who vice in this kind of scales was found by him purchases at retail. In other words, the to be generic, and, as the objection was not one due to a defect of an individual ma chine, it was deemed useless to make indionly in the sense that every truth of general vidual tests. The "specifications" are a law application may be spoken of as a law. If they may be termed a rule, it is only in the sense that they furnish a guide for the action of those interested; that is, the function of the "specifications" is educational, and at most advisory. The item was one appropriate for a bulletin "of instruction and information to dealers and weights and measures officials." That such was its purpose is shown also by the other items contained in the same issue of the bulletin. In the pages preceding the "specifications" here in question was one item giving elementary information as to how prosecutions for violation of the General Business Law may be conducted, and two recent opinions of the Attorney General of New York addressed to the state superintendent. The first concerned the power of *local magistrates to punish for violation of that law; the other the right to mark containers in terms of the metric system. Following the "specifications" in question are two more opinions of the Attorney-General and the opinon of a Municipal Court. The last item of the bulletin is entitled "Specifications-Measuring Pumps," and conveys useful information concerning automatic measuring devices. The information given *575 |
