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(40 Sup.Ct.) the refusal by the trial court of a motion (evidently a misprint for "consignee") to the made by defendants to hold: (a) That upon delivering carrier, and subsequently the cattle all the evidence plaintiff was not entitled to were sold upon the market and the amount of recover against any or all of the defendants; the freight deducted from the purchase price, and (b) that there was not sufficient evi- remittance being made for the balance, so dence before the commission to sustain its that in all cases the owner and shipper of the order of reparation. The latter is the sub-cattle finally paid the transportation charges ; stantial question actually presented.

and that by the unreasonable exactions of the The course of proceedings at the trial, as carriers the shippers were damaged in the appears from the bill of exceptions, was as amounts stated in the appropriate column of follows: Plaintiff introduced the report of Appendix A, since they received for the cattle the Interstate Commerce Commission (unre- less by those amounts than they would have ported opinion No. 1—583 in case No. 732, received had the rate found reasonable been Cattle Raisers' Association of Texas v. Missouri, Kansas & Texas Railway Co., dated charged; that in the case of some of the January 12, 1914), and the order of repara- claims the shippers made assignments to H. tion made pursuant to it and upon which the E. Crowley, then being secretary of the Cataction was based. Defendants having admit- tle Raisers' Association, in a form set forth ted the service of the order, and that the in the report; that subsequently Crowley money awarded had not been paid, plaintiff ceased to be such secretary, and was succeedrested. The report makes an award in favor ed by Spiller, the plaintiff, to whom Crowley of Spiller, plaintiff in error, as assignee of assigned all claims previously assigned to a large number of claims for reparation by him; and that other specified claims were reason of excessive rates charged by the re- assigned by the shippers to Spiller after he spective carriers on interstate shipments of became secretary, the form of assignment becattle from points of origin in Texas, Okla-ing the same as that previously employed. homa, New Mexico, Colorado, and Kansas,

Defendants, endeavoring to show the insufto destinations at Kansas City, St. Louis, ficiency of the evidence upon which the findChicago, St. Joseph, and New Orleans, on va- ings and order of the commission were based, rious dates between August 29, 1906, and introduced a transcript of the stenographer's November 17, 1908; and a further award to notes of the testimony taken upon the hearing named shippers in the case of certain unas- of the reparation claims, following this by insigned claims pertaining to similar ship- troducing a sample page taken from one of

the exhibits introduced before the commission ments; the *several claims, assigned and un

as illustrative of the form of exhibits there assigned, with distinguishing marks, being set introduced. After other evidence not necesforth in Appendix A, showing the delivering sary to be mentioned, and a request for judg. carriers against which the claims were allow-ment in favor of defendants, and for certain ed and, in each case, the consignor, points of rulings on points of law that would have proorigin and destination, number of cars ship- duced that result, all of which were refused, ped, weight, rate paid, the lower rate sanc- the case was closed. tigned by the commission, amount of refund

It appears that in February, 1904, the Cat. required, and the interest thereon. The re- tle Raisers' Association of Texas, in behalf of port contains appropriate findings adequate

its members and of others interested, petitionto support the award, among them the fol- ed the Interstate Commerce Commission unlowing: That the persons named in Appen. St. $ 8581), alleging the rates in force in the

der section 13 of the Commerce Act (Comp. dix A as consignors shipped from the points of origin to the points of destination specified, territory in question to be unjust and unreaby the line of road named as the “delivering

sonable, they having been advanced some road,” the number of cars and of the aggre- time before to the extent (in most cases) of gate net weight stated; that the shippers paid 3 cents per hundred pounds. On August 16, to the delivering carriers freight upon the 1905, the commission held (Cattle Raisers' shipments at certain rates named; that in Association of Texas v. Missouri, Kansas & each instance this rate was unreasonable and Texas Ry. Co., 11 Interst. Com. Com'n R. 296, excessive, and a reasonable rate to have been 352) that the then existing rates were unjust charged would have been the lower rate spec- and unreasonable by the amount of the adified as having been subsequently established

vance. At this time the commission was not by the commission, and that therefore the de- empowered to fix rates for the future. This livering carriers collected from the shippers power having been conferred by the Hepburn unreasonable charges on account of the ship Act of June 29, 1906 (chapter 3591, 34 Stat. ments in amounts named in the column head-584, 589 [Comp. St. $ 8583]), which, by joint ed “Amount of Refund"; that the shipments resolution of June 30, 1906 (34 Stat. 838), of live stock were in all cases consigned to *took effect 60 days after its approval by the some person at the delivering market, usual. President, or on August 28, 1906, the Cattle ly a commission firm; that the freight was Raisers' Association immediately thereafter paid in the first instance by the “consignor" applied for and obtained a reopening of the

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matter, to the end that reasonable rates, party complainant is entitled to an award might be established; and on April 14, 1908, of damages, the commission is to make an the commission decided that the former rates order of reparation accordingly, and in a suit should be restored, but that reparation would based thereon "the findings and order of the not be allowed upon claims accruing prior to commission shall be prima facie evidence of August 29, 1906 (date of the application). 13 the facts therein stated." The same section Interst. Com. Com'n R. 418. 435. The reduc- contemplates that numerous parties may ed rates finally were put into effect Novem- unite in a claim for reparation, and that ber 17, 1908.

numerous carriers may be joined as defendThe reparation claims in controversy ap- ants; and similarly that in a suit brought pear to have been filed in due season by the upon such award there may be a joinder of Cattle Raisers' Association in behalf of its parties plaintiff and defendant. And, by secmembers and other shippers interested, and tion 17 (24 Stat. 385; 25 Stat. 861 (Comp. in the names of the alleged owners of the St. 8 8586]), “the commission may conduct its cattle shipped.

proceedings in such manner as will best con[5] The transcript of the testimony taken duce to the proper dispatch of business and by the commission, as introduced in evidence to the ends of justice." in the District Court, forms the basis of the These provisions allow a large degree of decision of the Circuit Court of Appeals that latitude in the investigation of claims for the reparation order was unsupported by evi- reparation, and the resulting findings and dence. But the transcript shows that import-order of the commission may not be rejected ant documentary evidence was introduced, as evidence because of any errors in its proand furnished the principal foundation for cedure not amounting to a denial of the the findings made. This documentary evi- right to a fair hearing, so long as the essendence (except the single sheet offered for pur- tial facts found are based upon substantial poses of illustration) was not introduced in evidence. the District Court, in order, as stated by counsel, to “avoid introducing a number of papers

[7-9] *In the present case, the hearing was that would almost fill a farm wagon." But informal, but not to the extent of sacrificing obviously we hardly could sustain a decision essential rights of parties; and it cannot be rejecting the reparation order upon the characterized as arbitrary or unfair. Many ground that there was not sufficient evidence carriers were interested, and they were repbefore the commission to support it when resented by counsel. Thousands of carload the whole of the evidence that was before the shipments were in question, but the points commission was not produced.

in real controversy were few, and there was [6] That this is a matter of substance will

a natural desire on all sides to expedite the appear from a review of the course of the hearing. In the main, counsel for the carriproceeding as disclosed by the stenographer's ers co-operated in facilitating the investiga

tion. transcript. The evidence was taken by Mr.

It was not in dispute that all shipCommissioner Prouty at Chicago; there be ments under inquiry were made during a ing three sessions, the first on September 19 period when the tariff rates were under inand 20, 1912, the second on January 24 and vestigation, and that afterwards those rates the third on October 17 in the following year.

were determined by the commission to have

been excessive. They were held in the presence of counsel

It appeared that itemized

claims for reparation had been made out in for the *Cattle Raisers' Association, who ap- duplicate (one copy of each being filed), in peared for the claimants, and counsel for the names of the parties alleged to have the several carriers interested. If we were made shipments of cattle as owners during called upon to review the proceeding as upon the period in question, that these were based a writ of error or appeal it might be difficult in most cases upon data furnished by the to say that no improper evidence was admit commission houses at the several points of ted, that production of the best available destination, as taken from their books, in was insisted upon, or that a different conclu- other cases by the shippers themselves, and sion might not have been reached upon that that they were computed by applying the which was admitted. But the scope of the excess charges, as determined, to the actual judicial review is not so extensive. Section weights of the shipments where known, in 13 of the Act to Regulate Commerce (Act other cases to the minimum carload weights. Feb. 4, 1887, c. 104, 24 Stat. 379, 383, amended There was evidence that a few of the cattle June 18, 1910 (chapter 309, 36 Stat. 539, 550]) shippers kept books, they relying upon the requires the commission on receipt of a claim commission companies to do this, and that for reparation to proceed on notice to the such companies were the consignees of the carrier to "investigate the matters complain- cattle, and made it a practice on receiving ed of in such manner and by such means as a shipment to pay the freight, sell the cattle, it shall deem proper"; and by section 16 (34 and remit the proceeds to the owner after Stat. 590; 36 Stat. 554), if, after such hear- deducting the freight paid and other charges. ing, the commission shall determine that any During the hearing, there was drawn ofte

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(40 Sup.Ct.) from the claims as made up and filed a sum- , sion of the hearing it was the intention to mary for each carrier, purporting to show appoint an examiner to investigate the books the consignor, consignee, originating road, of the commission merchants at the various point of origin, destination, date of delivery, points of destination in order to verify the de number of cars moved, rate paid, rate estab tails of the several shipments, and that this lished by the commission, and the overcharge purpose was abandoned in view of the admisclaimed. These were submitted to the sev- sions made by the carriers. Perhaps it eral carriers for investigation by their ac ought to have been carried out; but the

court was not justified in treating the report counting officers, and *some months later of the commission as a nullity for this reawere reported back to Commissioner Prouty son, if there was substantial evidence of the by their counsel with the results of such in essential facts without such verification. We vestigation, which in a majority of instances think that what we have detailed of the verified the statements said to have been de course of the hearing, taken in connection duced from the records of the commission with what we know and what may be prehouses. In some cases, in addition to check sumed as to the contents of the unproduced marks, “O. K.” and other marks indicating documentary evidence, shows there was subthat the items had been found correct, way-stantial evidence that the owners specified bill references, car numbers, initials, etc., in the claims had been subjected to the exhad been inserted; and where it had been cessive charges with respect to the shipments found impossible to locate a shipment there acknowledged by the carriers; and, as alwere comments tending to add support to the verification of those that were located. No ready remarked, the award of reparation

was confined to these shipments. reparation was awarded by the commission

[10] The opinion of the Circuit Court of except with respect to such shipments as

Appeals severely criticizes the evidence on were acknowledged in the reports of the de- which these conclusions were based, characfendants to have moved as stated. These terizing it as hearsay. It is not to be disreports were introduced in evidence before puted that much of the evidence—including Commissioner Prouty, but, as already shown, essential parts of it—is properly so characwere not in evidence before the District

terized. The only witness sworn was Mr. Court. What we have said as to their con-Williams, assistant secretary of the Cattle tents is gathered from the stenographer's Raisers' Association, who had gathered the transcript; what else may have appeared

data upon which the claims were based, upon their face, in the nature of admissions, is left to be inferred. Counsel for some of mostly from commission merchants, in some the carriers undertook to qualify the effect instances from the cattle shippers. He had of admissions contained in them, as by say prepared the claims, had spent much *time ing that the checking meant no more than and pains in investigating them, and in that a particular car moved as stated, and the course of his duties had visited sevthat the carrier collected the amount of eral of the points of destination and exfreight specified; that it was not intended amined the books and records of the comto admit that remittance was made to the mission merchants to ascertain the methperson named as claimant; that the state od in which their business was conducted ments were subject to confirmation by the and records kept. It was he who testified as books of the commission merchants, or the to the customary course of business of cattle like. But the commission was justified in

shippers and commission merchants. He according to the reports of the checking an had been connected with the Cattle Raisers' evidential effect, not limited by the qualify- Association for about eight years, and might ing statements, treating the latter as merely be presumed to have some, general familiariargumentative. It might regard the fact that the shipments could be and were identity with the business in addition to that gainfied from the records of the carriers, in the ed in the special study he had made of it manner described, as evidence that the de while investigating the claims. His explanatails respecting the shippers of the cattle and tion of the method of business and the details the particulars of the shipments were true; of the claims was accepted, and accepted withmight take the movement and delivery of out objection, very much as the testimony of *129

an expert witness might have been accepted. the freight thus *acknowledged as evidence Whether he had shown such special knowlthat the delivering carrier collected the edge as to qualify him to testify as an exfreight charges according to the published pert was for the Interstate Commerce Comtariffs, which of course included the over- mission to determine; and its decision therecharges; and might take this, in connection on is not to be set aside by the courts unless with the evidence as to the course of busi- clearly shown to have been unfounded, which ness, as showing that the shippers whose cannot be said in this case. Stillwell Mfg. names were mentioned in the statements sus-Co. v. Phelps, 130 U. S. 520, 527, 9 Sup. Ct. tained damages to the extent of the excessive 601, 32 L. Ed. 1035; Montana Ry. Co. v. charge as determined by the commission. Warren, 137 U. S. 348, 353, 11 Sup. Ct. 96, The minutes show that until near the conclu- | 34 L. Ed. 681.

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The evidence was not objected to as hearsay, high Valley R. R., 236 U. S. 434, 439, 35 Sup. when introduced, nor, indeed, at any time Ct. 337, 59 L. Ed. 659; Mills v. Lehigh Valley during the hearing before the commission. R. R., 238 U. S. 473, 482, 35 Sup. Ct. 888, Counsel did in some instances assert that 59 L. Ed. 1414), being open to contradiction there was a failure of proof, and suggest by the carrier when sued for recovery of that the proceeding ought to be dismissed. i the amount awarded, is an added reason for But the objections came too late, and were too general in character, to be equivalent to not binding down the *commission too closely an objection to the reception of the evidence in respect of the character of the evidence because hearsay. Even in a court of law, if it may receive or the manner in which its evidence of this kind is admitted without ob- hearings shall be conducted. jection, it is to be considered, and accorded

In this case the commission did not act its natural probative effect, as if it were in upon evidence of which the carriers were law admissible. Diaz v. United States, 223 not cognizant and to which they had no opU. S. 442, 450, 32 Sup. Ct. 250, 56 L. Ed. 500, portunity to reply, as in the case supposed Ann. Cas. 1913C, 1138; Rowland v. St. Louis in Interstate Com. Comm. y. Louis. & Nash. & S. F. R. R. Co., 244 U. S. 106, 108, 37 Sup. R. R., 227 U. S. 88, 91, 93, 33 Sup. Ct. 183, Ct. 577, 61 L. Ed. 1022;

57 L.Ed. 431. All the carriers participated

Damon v. Carrol, 163 Mass. 404, 408, 40 N. E. 185. And it is in the hearing, and had full opportunity to clear that the verification of the details of object, to cross-examine, and to introduce

evidence on their own part. the *claim's by the carriers after full investi- It is objected that the evidence failed to gation by their auditing departments consti- show who owned the cattle shipped or who tuted primary evidence against them, and paid the freight. This cannot be sustained. went far towards showing that the facts as True, it appeared that the cattle were not in disclosed by the hearsay evidence might be all instances billed in the name of the owner, depended upon.

but sometimes in the name of a caretaker, [11] We are not here called upon to con- his name being inserted in the bill as evisider whether the commission may receive dence of his right to free transportation. and act upon hearsay evidence seasonably But it is probable that in the latter cases objected to as hearsay; but we do hold that there was a want of correspondence between in this case, where such evidence was intro- the claims as presented and the carriers' duced without objection and was substantial books, and that for want of checking by the ly corroborated by original evidence clearly carriers they were omitted from the award. admissible against the parties to be affect. The evidence upon the whole was sufficient ed, the commission is not to be regarded as to sustain a finding, so far as the claims having acted arbitrarily, nor may its find- ) were allowed, that the parties in whose beings and order be rejected as wanting in sup- half they were allowed were consignors of port, simply because the hearsay evidence the shipments and presumably owners of the was considered with the rest.

cattle shipped. In Interstate Com. Comm. v. Baird, 194 [12] If there be doubt whether it was sufU. S. 25, 44, 24 Sup. Ct. 563, 569 (48 L. Ed. ficient to sustain each and every claim that 860), it was said:

was allowed, we are not now concerned with “The inquiry of a board of the character of this; the ruling in question being the refusal the Interstate Commerce Commission should not of the trial court to treat the award as void be too narrowly constrained by technical rules in toto. This was not erroneous if to any as to the admissibility of proof. Its function substantial extent the award was legally is largely one of investigation and it should not valid. If a part only of the claims was unbe hampered in making inquiry pertaining to supported by evidence, the request for an interstate commerce by those narrow rules which adverse ruling should have been directed to prevail in trials at common law where a strict

these. correspondence is required between allegation and proof.”

The principal defense before the commis

sion was that the payment of a publisbed In Interstate Com. Comm. v. Louis. & rate afterwards decided to have been excesNash. R. R., 227 U. S. 88, 93, 33 Sup. Ct. sive was not evidence that the party who 185, 187 (57 L. Ed. 431), the court recognized that

paid *the freight sustained damage to the "The commission is an administrative body extent of the excess. The Circuit Court of and, even where it acts in a quasi judicial ca- Appeals sustained this contention at the first pacity, is not limited by the strict rules, as to hearing. 246 Fed. 1, 23, 158 C. C. A. 227. the admissibility of evidence, which prevail in But it has since been ruled otherwise by suits between private parties.”

this court (Southern Pacific Co. v. DarnellAnd the fact that a reparation order has Taenzer Co., 245 U. S. 531, 534, 38 Sup. Ct. at most only the effect of prima facie evi-186, 62 L. Ed. 451), and, in view of this, dence (Meeker & Co. v. Lehigh Valley R. R., upon the rehearing the Circuit Court of Ap236 U. S. 412, 430, 35 Sup. Ct. 328, 59 L. peals withdrew this part of its former opinEd. 644, Ann. Cas. 1916B, 691; Meeker v. Le-ion (249 Fed. 677, 161 O. C. A. 587).

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(40 Sup.Ct.) [13] That court held, further, that upon grounds upon which the Circuit Court of Apthe undisputed evidence the legal title to the peals based it. It is insisted, however, that, claims for reparation never 'vested in Spil-failing this, the same result ought to have ler, and hence that the commission was whol- been reached upon the ground that the proly without authority to order reparation to visions of the Commerce Act do not perbe made to him. The minutes show that mit an assignment of a claim for reparation of the claims in favor of Spiller a number to a third party and hence the Interstate had been assigned to Crowley when he was commerce Commission was without jurisdicsecretary of the Cattle Raisers' Association, tion to award reparation to Spiller. This is and afterwards assigned by him to Spiller based upon the language of sections 8 and 9 when Crowley retired and Spiller succeeded (Comp. St. 88 8572, 8573), which remain in him; that other claims were assigned by their original form, of section 13, as amendthe consignors to Spiller direct; and that stilled June 18, 1910 (chapter 309, 36 Stat. 550), others had not been assigned. The assign- and of section 16 as amended June 29, 1906 ments were produced before Commissioner (34 Stat. 584). Section 8 (24 Stat. 382) makes Prouty, and an offer made to file them, but the common carrier, for anything done conas we interpret the minutes this was waived, trary to the prohibition of the act, "liable a copy of one of the assignments (they were said to be alike in form) being inserted in to the person or *persons injured thereby for the stenographer's notes instead. There was

the full amount of damages sustained in evidence that the assignments were made consequence of any such violation of the profor nominal considerations because the Cat- visions of this act." Section 9 entitles any tle Raisers' Association was prosecuting the person claiming to be damaged either to claims for the benefit of the owners thereof. make complaint to the commission or to In the schedule of the claims as submitted bring suit in his or their own behalf for to the commission those assigned were suit- the recovery of the damages for which such ably identified, and the commission awarded common carrier may be liable." Section 13 reparation to Spiller upon these, and in contains nothing that need be quoted. Secother cases made the order in favor of the tion 16 as amended (34 Stat. 590) provides parties named as owners. There was sub

that where an award of damages is made stantial evidence to support the finding that by the commission and the carrier does not the claims had been assigned. Formal proof comply with the order, “the complainant, of the handwriting of the assignors by sub- or any person for whose benefit such order scribing witnesses or otherwise was not nec

was made" may bring suit. Stress is laid essary in so summary a hearing, in the upon the absence of language expressly exabsence of objection or contradiction. What tending the remedy to the representatives or

assigns of the person aggrieved; but we atwas shown as *to the relation of the shippers tribute no controlling significance to this. to the association and the possession of the The provisions of the act giving redress, instruments of assignment by the representa- compensatory in its nature, to persons sustive of the association who was prosecuting taining pecuniary injury through the violathe claims gave a reasonable assurance of tion of public duty by the carrier must rethe genuineness of the instruments.

ceive a reasonably liberal and not a nar[14] The Circuit Court of Appeals held row interpretation. A claim for damages further, however, that, supposing there was sustained through the exaction of unreasonsufficient evidence to support the finding able charges for the carriage of freight is that the claims had been legally assigned to a claim not for a penalty but for compensaSpiller, it showed that the purpose of the tion, is a property right assignable in its naassignment was not such as to vest the legal | ture (Comegys v. Vasse, 1 Pet. 193, 213, 7 title to the claims in him so as to authorize L. Ed. 108; Erwin v. United States, 97 U. the commission to make the award of dam- S. 392, 395–396, 24 L. Ed. 1065), and must ages in his name. To this we cannot as- be regarded as assignable at law, in the absent. The assignments were absolute in sence of any expression of a legislative inform, and plainly their effect-supposing the tent to the contrary. We find nothing in claims to be assignable-was to vest the the letter or spirit of the act inconsistent legal title in Spiller. What they did not with such assignability. We are referred to pass to him was the beneficial or equitable certain expressions in Texas & Pacific Ry. title. But this was not necessary to sup- Co. v. Abilene Cotton Oil Co., 204 U. S. 420, port the right of the assignee to claim an 442, 27 Sup. Ct. 350, 51 L. Ed. 553, 9 Ann. award of reparation and enable him to re- Cas. 1075, and Southern Pacific Co. v. Darcover it by action at law brought in his own nell-Taenzer Lumber Co., 245 U. S. 531, 533, name but for the benefit of the equitable 534, 38 Sup. Ct. 186, 62 L. Ed. 451; but they owners of the claims; especially since it do not bear upon the present question, and appeared that such was the real purpose of are not inconsistent with the view that the assignments.

reparation claims are assignable. (15) We have said enough to show that [16] The Interstate Commerce Commisthe reversal of the judgments of the Dis- sion, by Conference Ruling No. 362 (June 4, trict Court cannot be sustained on the '1912), declared:

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