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[Rate schedules, contracts, or agreements, and carriers'
annual reports filed with commission and in custody
Cer-
of secretary are public records, receivable in courts
and by the commission as prima facie evidence.
tified copies or extracts therefrom also prima facie
evidence.]

485

fares, and charges, and of all contracts, agreements, and arrangements between common carriers filed with the Commission as herein provided and the statistics, tables, and figures contained in the annual or other reports of carriers made to the Commission as required under the provisions of this Act shall be preserved as public records in the custody of the secretary of the Commission, and shall be received as prima facie evidence of what they purport to be for the purpose of investigations by the Commission and in all judicial proceedings; and copies of and extracts from any of said schedules, classifications, tariffs, contracts, agreements, arrangements, or reports, made public records as aforesaid, certified by the secretary, under the Commission's seal, shall be received in evidence with like effect as the originals.

§ 382. The amendments of 1906 and 1910.-This section was also in effect re-written in the amendatory act of 1906 and substituted for the original section, this being necessitated by the radical changes in the powers conferred upon the commission in the preceding section. The original section provided for the enforcement of the orders of the commission by the courts on the petition of the commission, the findings of fact by the commission being prima facie evidence of the matters therein stated, and under the amendment of 1889, the saving of the right of trial by the jury under the seventh amendment of the constitution.

The amendments of 1906 provided for the filing of reparation complaints, for a limitation of time in bringing actions, for the service of the order of the commission by mailing, with penalties upon the carriers for non-observance of the orders, the employment of special counsel, the enforcement of orders for reparation, the venue of suits against the commission the application of the provisions of the expediting act, the regulation of the procedure and the granting of interlocutory orders in suits against the commission, and for appeals to the supreme court from final as well as interlocutory orders in such suits, and for the use of schedules, tariffs and tables as evidence.

The act of 1910 provided for the institution of suits for reparation in state courts, for service upon the agent of the carrier at Washington in lieu of the service by registered mail, for the em

employment of official attorneys by the commission, whereas in the act of 1906 it was with the consent of the attorney-general that special counsel was employed.

The provisions of the act of 1906 as to suits against the commission were omitted in view of the creation of the commerce court under the same act.

§383. The saving of the right of trial by jury.-The seventh amendment of the constitution provides that in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise examined in the courts of the United States than according to the rules of the common law. The amendment of 1889 of the original act was made in view of the express requirement in section 14 of the original act, that the commission should make recommendation as to what reparation, if any, should be made by the carriers as to any party or parties who may have been found to have been injured.

As to the application of the original act, that is, prior to the amendment of 1906, in actions of reparation, see Interstate Commerce Commission v. R. R. Co., 82 Fed. 192, W. D. of Pennsylvania (1897), wherein the court ruled that each shipper had a right to reparation and damages as a separate legal controversy which would entitle him to a trial by jury when in excess of twenty dollars. In the Texas Cattle Raisers Case, 10 I. C. C. R. 83 (1904), this question was considered by the commission, and it was said that it had been the practice of the commission to order reparation in behalf of the members of complaining associations; but it was suggested as the law was unsettled that the members of the association should file separate intervening claims.

Under the act as amended suits for reparation, wherein orders for the payment of money are made, are brought in the circuit court of the United States or in any state court having jurisdiction of the parties; and such a suit in the circuit court of the United States proceeds in all respects like other civil suits for damages, except that on the trial of such suit the finding and order of the commission shall be prima facie evidence of the facts therein stated; and the petitioner is not liable for costs in the circuit court nor subsequently except upon his own appeal; and

if he prevail, is allowed a reasonable attorney's fee. The right of trial by jury is thus preserved.

While the statute provides for the joining as plaintiffs of all parties in whose favor the commission may have made the award for damages by a single order, it would seem that the constitutional right of trial by jury where the demand exceeds twenty dollars, would require a separate trial for each separate claimant if he demanded, and that the procedure would have to be adapted thereto.

Under the new judicial code, wherever reference is made to the circuit court of the United States in this section as a trial court, the reference will be deemed and held to confer the power and impose the duty upon the district court after the code takes effect on January 1st, 1912.

§ 384. The time limitation of actions for reparation.-There was no provision in the Interstate Commerce Act before the amendment of 1906, prescribing a limitation of time within which actions in court or proceedings before the commission should be commenced. The discussions therefore prior to this time of this question of limitation, whether in the commission or the court, have now only an historical interest. Under the section as amended complaints for recovery of damages must be filed with the commission within two years after the cause of action accrues, and not after, and suit thereon must be filed in the circuit court or state court within one year of the date of the order of the commission and not later. This limitation was applied by the commission in its ruling in 19 I. C. C. R. 592, where the complaint included shipments covering an extended period of time, and said that it would only consider such shipments as moved within two years prior to the time the complaint embracing them was filed, and that with respect to shipments moving prior to such two year period the commission believed that they were without jurisdiction and therefore, made no finding what

ever.

§ 385. Commission must find reasonable rate before ordering reparation.—It was held by the circuit court of appeals, eighth circuit, in Denver R. G. R. Co. v. Baer Bros. Mercantile Co., 187 Fed. 485 (May, 1911), that in a proceeding before the Inter

state Commerce Commission to recover damages on a complaint by a shipper that the amount collected by the carrier at a lawful established rate has been excessive because that rate was unreasonable, the finding and prescription by the commission of a reasonable maximum rate to be observed by all and an order by the commission prohibiting the use of a rate in excess thereof, as provided in section 15, were conditions precedent to the exercise of the power under section 16 to order reparation. The court said that an order of reparation without such an establishment of a reasonable maximum rate was beyond the power of the commission and void, and as no rate was prescribed and no rate forbidding the future use of an excessive rate was made in the case, the commission's order of reparation was beyond its power and void. The court therefore reversed the judgment rendered in the circuit court without considering the other questions raised in the case.

§ 386. The jurisdiction of the commission in awarding reparation. The commission has ruled that its award of reparation is simply a recommendation which can only be enforced by a suit at law affording full opportunity for a jury trial, and that upon this theory the act giving them this authority is valid and constitutional. 10 I. C. C. R. 83. Reparation, the commission has said, should not be awarded in any informal proceedings which would not be awarded under the same state of facts in a contested case and in the face of defendant's protestation instead of its admission. The commission, therefore, could not accept as conclusive any stipulation of parties as to the reasonableness of a rate or transportation regulation. 16 I. C. C. R. 426. The right to reparation is not confined to shipments made by parties to any given proceeding, but extends to all shipments moving under the same circumstances and conditions and charged for on the basis found to be unlawful by whomsoever made. 17 I. C. C. R. 253.

It was ruled by the commission, in 17 I. C. C. R. 90, that where a transportation service has been rendered for which no tariff authority exists, and where the shipper has paid the sum claimed by the carrier for that service, the commission has jurisdiction to inquire what was the reasonable charge for that service.

In this case the extra service was for ice and refrigeration. (Commissioner Cockrell dissented on the ground that the com

mission had no power under the act to inquire into the value of service rendered by the carrier independently of a rate lawfully fixed by the carrier for such service.)

On the general question of the jurisdiction of the commission to award reparation it was said by the supreme court, in the Abilene Cotton Oil Case, supra.

"Although an established schedule of rates may have been altered by a carrier voluntarily or as the result of an enforcement of the order of the commission to desist from violating the law rendered in accordance with the provisions of the statute, it may not be doubted that the power of the commission would nevertheless extend to hearing legal complaints of and awarding reparation to individuals for wrongs unlawfully suffered from the application of the unreasonable schedule during the period when such schedule was in force." See also 15 I. C. C. R. p. 334.

In 15 I. C. C. R. 147, decided in 1909, the commission said that in passing upon the reasonableness or unreasonableness of a rate it acted as an administrative body having quasi judicial functions; when it determines what the rate should have been and shall be in the future it exercises certain legislative functions. When it computes the damages or reparation due the shipper by reason of the enforcement and collection of a rate unreasonable to the extent that it exceeds a rate which is declared to be reasonable, there is a mathematical determination of the damages of the shipper should receive, and that elements of conjecture, speculation and inference are entirely eliminated. It said further that the commission did not assess costs or allow attorneys' fees, nor did its order for the payment of money have the effect of a judgment of the court. Such orders were not enforcible by process nor did they become liens upon the property of the defendant.

§ 387. Jurisdiction of the commission in awarding general damages. While the commission has uniformly awarded dam ages in reparation, where the subject matter of the complaint was an unreasonable rate and the award was merely a matter of calculation there has been a difference of opinion in the commission as to its jurisdiction or its duty to award damages in demands for reparation other than those which could be ascertained.

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