state or federal court, or to any officer or agent of the Government of the United States, or of any State or Territory, in the exercise of his powers, or to any officer or other duly authorized person seeking such information for the prosecution of persons charged with or suspected of crime; or information given by a common carrier to another carrier or its duly authorized agent, for the purpose of adjusting mutual traffic accounts in the ordinary course of business of such carriers.

[Penalty.]

Any person, corporation, or association violating any of the provisions of the next preceding paragraph of this section shall be deemed guilty of a misdemeanor, and for each offense, on conviction, shall pay to the United States a penalty of not more than one thousand dollars.

[Commission may determine just and reasonable charge
or allowance for service rendered by owner of property
transported or for any instrumentality furnished by
such owner and used in such transportation.]

If the owner of property transported under this Act directly or indirectly renders any service connected with such transportation, or furnishes any instrumentality used therein, the charge and allowance therefor shall be no more than is just and reasonable, and the Commission may, after hearing on a complaint or on its own initiative, determine what is a reasonable charge as the maximum to be paid by the carrier or carriers for the services so rendered or for the use of the instrumentality so furnished, and fix the same by appropriate order, which order shall have the same force and effect and be enforced in like manner as the orders above provided for under this section.

[Enumeration of powers in this section not exclusive.]

The foregoing enumeration of powers shall not exclude any power which the Commission would otherwise have in the making of an order under the provisions of this Act.

§ 370. The amendments of 1906 and of 1910.-This section has been more radically changed by the successive amendments of the act than any other. In its original form, it provided only for a notice to the common carrier to cease from the violation of the act, after the commission had found that such violation had been committed. Under the act as originally framed, this notice was jurisdictional, as it was a necessary basis for a subsequent procedure in court against the carrier to enforce the order of the commission. See 7 I. C. C. Rep. 286.

In the amendatory act of 1906, known as the Hepburn Act, section 15 was in effect re-written, as radical changes were made in the enlargement of the powers of the commission, in empower

ing it to declare any rate or regulation or practice of a carrier was unjust or unreasonable, and also to determine and prescribe a rate or regulation in futuro, to establish through routes under certain conditions, and joint rates and classifications. In 1910, further radical enlargements were made in the powers of the commission, in that it was given authority to investigate any rate increase, and to suspend the same pending investigation, with the burden of proof upon the carrier to show the reasonableness of the increased rate; to establish through routes and joint rates and classifications without the limitation "that no reasonable or satisfactory through routes exists" imposed in the original amendment of 1906; and also empowering the shipper to elect his own through route, and making it unlawful for any carrier to give information concerning rival shipments, and authorizing the commission to determine the just and reasonable allowance for any service rendered by any owner of property transported and for any instrumentality furnished by the owner.

The provision in the original section for a formal notice of the commission's order to the carrier is omitted, as under the succeeding sections the orders, other than for the payment of reparation damages, are made directly enforcible under penalties on the carrier by order of the commission, and a court procedure for enforcement is no longer required.

§ 371. The constitutionality of the amendment of 1906 sustained. This section as amended by the act of 1906, prior to the amendment of 1910, was held constitutional and valid by the circuit judges of the fifth circuit in L. & N. R. Co. v. Interstate Commerce Commission, 184 Fed. 118 (April, 1910). Suit was brought by the railroad company to enjoin the enforcement of the orders of the commission reducing rates and fixing maximum rates between New Orleans and certain other southern cities. 17 I. C. C. R. p. 231. The court said, that the power delegated by congress to the commission to prescribe railroad rates was legislative in its nature, and since it concerned the administrative affairs of the government, which by reason of variable conditions could not be covered in detail by direct legislation, its delegation was not in violation of the constitution and the power may be as fully exercised by the commission, as congress might have exercised it, subject to any limitation imposed by congress itself.

"The provision of the constitution, art. I par. 9, that no preference should be given by any regulation of commerce or revenue to the ports of one state over those of another" did not prevent such exercise of the power of congress by delegated authority to regulate commerce between ports of different states, merely because such regulation may incidentally affect the commerce of a port in still another state.

It was also held that in fixing a maximum rate to be charged by a carrier there was no restriction of the commission in respect to the matters which it may take into consideration, or the weight which it should give to such matters in informing itself what opinion it ought to give, except that it should not abuse its authority and proceed arbitrarily without regard to the justice of the case or give a judgment not fairly within its power.

§ 372. The enlarged powers of the commission. It was contended before the supreme court in the Illinois Central coal car distribution case, supra (1910), that section 15 of the act as amended in 1906 did not empower the Interstate Commerce Commission to make the order regulating coal car distribution and that the power conferred related only to rates which were not involved in this case; but the court said that this contention would frustrate the very purpose for which the amendment was enacted and that the antecedent construction which the Interstate Commerce Act had necessitated and the remedial character of the amendments of 1906 all served to show the want of merit in this contention. The court, therefore, held that the Commission was fully empowered under the act as amended in 1906 to make the order regulating coal car distribution.

In the "general damage" case, 17 I. C. C. R. 361 (1909) it was said that section 15 was the dominating and controlling expression of the real object and meaning of the act in its present form, and that it made of the commission what it was undoubtedly intended to be, a special expert body created for the purpose of dealing with the rates and rules, regulations and practices of carriers affecting rates. In this case the commission said that since its original enactment the act to regulate commerce had been amended many times, without being redrafted as a whole in order to bring its various provisions into harmony with one another, and the result was the act was not free from inconsistencies, and that some times doubt arose as to its real meaning; and by way of

illustration it was shown that the supreme court had been compelled in the Abilene Coal case to read out of the act certain language of sections 8, 9 and 22, in order that the act should not destroy itself. See supra, sec. 9.

The commission, prior to the amendment of 1906, was an investigating administrative board, its recommendations being enforced only by the action of the courts; while under the amend ments of 1906 and 1910 primarily in this section 15, it has not only the quasi judicial power of determining what existing rates and regulations are unreasonable and also of suspending the taking effect of an increased rate pending the investigation thereof, but also the essentially legislative and administrative power of substituting therefor a rate and regulation in futuro; and its conclusions and orders are directly enforcible by penalties unless suspended or set aside by the action of the court invoked by the carrier. This power of the commission to determine the reasonableness of an existing rate or regulation is incidental and essential in fixing a reasonable rate or regulation for the future.

It was held in N. Y. C. & H. R. R. Co. v. Interstate Commerce Commission, supra, that the commission has authority under this amended section to make an order that a carrier shall cease and desist from violating the Interstate Commerce Act to the extent to which the commission finds that such violation exists; and where discrimination exists, it may prescribe a relative rate, instead of a maximum rate, which will enable the carrier to discontinue the discrimination without reducing the rate to other shippers or to other commodities, and that the commission was not required to prescribe doubtful regulations and remedies which are not necessary to remove the discrimination, and that it may properly authorize the carrier to make such regulation should the necessity arise. In this case the court made an order that the complainant, a New York miller, was entitled to a milling in transit rate given western shippers for purposes of export.

§ 373. The establishment of through routes.-In more than one instance, the amendments in the act of 1910 were the result of the judicial construction of the provisions of the act of 1906. Thus in the section as amended in 1906, the commission was authorized to establish an additional through route when no reasonable or satisfactory through route existed, and the commission

acting thereunder, 16 I. C. C. Rep. 300, established a through route and joint rate for passenger travel between points in the northwestern part of the state of Washington to eastern destinations via Portland, and this order was resisted in the courts upon the grounds that there was already in existence a reasonable and satisfactory through route. It was held by the supreme court in Interstate Commerce Commission v. Northern Pacific Ry. Co., 216 U. S. 538, 54 L. Ed. 608 (1910), that this condition whether a reasonable or satisfactory through route existed was jurisdictional, and the conclusion of the commission was subject to review by the courts, and that the personal preferences of travelers for a more southern route to the Pacific were not sufficient to justify the order, and the judgment of the circuit court enjoining the enforcement of the commission's order was affirmed.

In the amendment of 1910, this provision as to the reasonableness of an existing route was stricken out, and the commission was given authority to establish, either on a complaint or upon its own initiative, through routes and joint classifications and joint rates, and the terms and conditions under which those through routes shall be operated, whenever the carriers shall have failed or refused to voluntarily establish such through routes and classifications and joint rates; and this provision applies when one of the connecting carriers is a water line.

Other limitations in the right of the commission to order through routing remain. The commission can not require a company, without its consent, to embrace in the route substantially less than the entire length of its railroad, etc. This provision has not been construed by the courts or the commission. There is also a limitation as to the through routing between street electric passenger railways and others which has been construed by the commission. See § 374, infra. See also the annual reports of the commission on this subject. Report of 1909, page 36; report of 1910, page 19.

§ 374. Switch connections and through routing between steam and electric railway.-The authorization of the commission to establish through routes and joint rates and classifications is subject to the proviso that the commission shall not establish any "through route classification or rate between street electric passenger railways not engaged in the general business of trans