SECTION 13.

Page.

§ 270. Complaints to Commission-How and by whom made-How served upon carriers......

314

271. Procedure before Commission--Parties

314

272. Pleadings and proofs..

315

.. 316

317

273. Burden of proof.....

274. Production of books and papers.

275. The rulings of the Commission as precedents...

318

$270. Complaints to Commission - How and by whom made How served upon carriers.- SEC. 13. That any person, firm, corporation, or association, or any mercantile, agricultural, or manufacturing society, or any body politic or municipal organization complaining of anything done or omitted to be done by any common carrier subject to the provisions of this act in contravention of the provisions thereof, may apply to said Commission by petition, which shall briefly state the facts; whereupon a statement of the charges thus made shall be forwarded by the Commission to such common carrier, who shall be called upon to satisfy the complaint or to answer the same in writing within a reasonable time, to be specified by the Commission. If such common carrier, within the time specified, shall make reparation for the injury alleged to have been done, said carrier shall be relieved of liability to the complainant only for the particular violation of law thus complained of. If such carrier shall not satisfy the complaint within the time specified, or there shall appear to be any reasonable ground for investigating said complaint, it shall be the duty of the Commission to investigate the matters complained of in such manner and by such means as it shall deem proper.

Said Commission shall in like manner investigate any complaint forwarded by the railroad commissioner or railroad commission of any state or territory, at the request of such commissioner or commission, and may institute any injury on its own motion in the same manner and to the same effect as though complaint had been made.

No complaint shall at any time be dismissed because of the absence of direct damage to the complainant.

$271. Procedure before Commission - Parties. This section regulating procedure before the Commission has been liberally construed by the Commission in furtherance of the obvious purpose of securing a summary investigation and with only so much formality as was essential to justice. Dilatory proceedings are considered objectionable and a single speedy hearing is desired in every case. 1 I. C. C. R. 223, 1 Int. Com. Rep. 410.

Any person or association is entitled to complain either for himself or for any community in which he is interested. Many complaints have been made before the Commission by local trade organizations interested in the locality or in specific industries. Thus the Boston Fruit & Produce Exchange was held a mercantile society within the meaning of the section and could maintain a proceeding without showing special damage to itself as a society. 4 I. C. C. R. 664, 3 Int. Com. Rep. 493. The Chicago Live Stock Exchange, whose members were engaged in the sale of live stock on commission in Chicago, was held entitled to maintain a proceeding to correct an unreasonable freight rate upon live stock from various points to Chicago, notwithstanding certain by-laws and proceedings of the association were claimed to be in violation of the AntiTrust law. 7 I. C. C. R. 513. It is immaterial that such trade organizations are unincorporated. See also 10 I. C. C. R. 428.

The prior leave of court is not necessary to entitle a shipper to proceed against a railroad in the hands of a receiver. 6 I. C. C. R. 520. When one makes a complaint under the Act to Regulate Commerce and sets up a personal grievance which he fails to prove before the Commission, if a violation of law by the defendant appears, the Commission can take the necessary steps to bring the violation of the law to an end. 1 I. C. C. R. 208, 1 Int. Com. Rep. 611.

As to parties defendant, it was held by the Supreme Court in Texas Pacific R. Co. v. Interstate Commerce Commission, supra, that the owner of the portion of line over which through freight is carried is a proper but not a necessary party in a proceeding concerning the alleged discrimination between inland and import rates. The Commission however has exercised the right to bring in all parties interested in a case. 4 I. C. C. R. 276, 3 Int. Com. Rep. 282, 5 I. C. C. R. 571, 4 Int. Com. Rep. 230.

§ 272. Pleadings and proofs.-A complaint concerning classification of rates should not be made against the Classification Committee or Rate Committee, but against the carriers who were represented by such committees, and the complaint should point them out by name. 4 I. C. C. R. 276, 3 Int. Com. Rep. 282. The Commission has early announced and it has al

ways insisted that it would not express opinions on abstract questions, nor on questions presented on exparte statements of facts, nor on questions of the statute presented for its advice, but without any controversy pending before it on complaint of violation of law. 1 I. C. C. R. 8, 1 Int. Com. Rep. 18. The Commission will not consider the claim of a party for injury to goods resulting from delay, detention, etc., or from any cause not attributable to any violation of the provision of the act to regulate commerce. 6 I. C. C. R. 85. Where reparation is asked to the extent of alleged excessive charges, reasonable time is allowed for making proof of the amounts paid when the evidence adduced shows excessive charges without disclosing the amount of the excess. 6 I. C. C. R. 335. The procedure is in the simplest form consistent with reasonable certainty. No replication is required. When the facts are not agreed upon, deposition may be taken upon notice or the hearing entered upon immediately after answer. Assignments of hearing are made upon the request of either party and parties are heard orally or on briefs, as they may prefer. See 1 I. C. C. R. 223, 1 Int. Com. Rep. 408.

When a carrier fails to answer the complaint filed, the Commission takes such proof of the facts as may be deemed proper and reasonable, and makes order therein accordingly. 5 I. C. C. R. 663, 4 Int. Com. Rep. 318.

§ 273. Burden of proof. The question of burden of proof has been construed in the matter of reasonableness of rates, section 1, discriminations, section 2, and unjust preferences, section 3. In general terms it may be said that the Commission adopts the rules in regard to the burden of proof and the shifting of the weight of testimony in accordance with the established rules of courts of justice liberally and not technically administered. Thus the burden is upon the part y mak ing the complaint, 8 I. C. C. R. 561, and relief will not be granted without proof. 1 I. C. C. R. 185, 1 Int. Com. Rep. 627. But when the fact of a greater aggregate charge for a short or long haul on the same line is established, the burden is upon the carrier to justify such excess. 4 I. C. C. R. 104. But where the carrier makes application for relief under the fourth section, he assumes the burden in the first instance. So where there is a departure from equal rates on several branches of

a road, the carrier is called upon to justify. 2 I C. C. R. 604, 2 Int. Com. Rep. 431. 8 I. C. C. R. 93 ruled that the bur. den is upon the carrier in all cases, where the departure from the rule of the law is made, to show clearly that his departure is justified, citing Missouri Pacific Ry. Co. v. Texas & Pacific Ry. Co., 31 Fed. Rep. 862. When the facts justifying an apparent disparity in rates are peculiarly within the knowledge of the carrier (6 I. C. C. R. 1), the burden is on him; thus the carrier must justify the disparity between rates on grain and grain products. 3 I. C. C. R. 252, 2 Int. Com. Rep. 604. The informal character of the procedure before the Commission is illustrated by the case (9 I. C. C. R. 602) where the general freight agent of the Texas & Pacific Railroad Company referred to the Commission a claim of a shipper for carload rating on a mixed carload of lemons and pineapples, it appearing that the tariff provided for a mixed carload of lemons and bananas and pineapples and bananas, but not for a mixed carload of lemons and pineapples, the general freight agent expressing his belief that the claim. was equitable. The Commission said that a matter submitted in this way should be treated as a complaint and answer; the railroad company should make answer and make reparation to the complainant for the rate above the carload rate.

When an important question is raised by the pleadings in a case, the determination of which will affect others quite as much as the parties before the Commission, but the parties give their attention almost exclusively to other questions, and neither by the evidence nor in argument supply the Commission with the information to enable it to be understandingly. determined, the Commission will decline to decide it, and leave the parties to bring it forward again as they may be advised. 1 I. C. C. R. 503, 1 Int. Com. Rep. 722.

$274. Production of books and papers.- In 3 I. C. C. R. 186, 2 Int. Com. Rep. 584, the Commission suggested the modes of procedure by which the inconvenience to defendant carriers of producing books where many entries were involved, might be avoided by petitioner, as by requiring statements of specific charges and facilities during specified period, or taking depositions by consent in advance of hearing.

As to proceedings for taking testimony and the production of books and papers, see this case, in which the Commission

said that there was a very manifest difference between ordering the production of books and papers of carriers directly interested and those of other parties, strangers to the proceeding. It was said in this case that the books of defendant carrier as to the rates charged, the facilities furnished and the general movements of freight were in the nature of semi-public records, and statements shonld be made therefrom on request as promptly as practicable. (See this case for what is required for an order for the production of books and papers.)

$275. The rulings of the Commission as precedents.The rulings of the Commission are based so distinctly upon the special facts of the cases submitted that the doctrine of judicial precedent has only a limited application. Thus in deciding a case against one or more carriers charged with making rates which are unjustly discriminating in a certain line of traffic, the decision may not apply at all to the rates in other sections where facts may be altogether different. 2 I. C. C. R. 365, 2 Int. Com. Rep. 245. One case can seldom be an exact precedent for another, for each traffic situation presents points of difference, and each complaint must be judged upon its own. peculiar facts. 8 I. C. C. R. 409.

A rate may be unreasonable at one time, and through changed conditions may become reasonable at another time, even before the conclusion of the litigation as to the reasonability of the rate. See conclusion of opinion in Nebraska Rate case, 169 U. S. 1. c. p. 550.