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by mere calculation of differences in rates. The question has been presented in two classes of cases: first, where an individual claimant suffered loss in business through delays in consequence of defaults of the carrier which are in contravention of some provision of the act, and second, where the complainant is one of a class of shippers, who are damaged by some rule or regulation declared discriminatory by the commission. In a case of the first class, 17 I. C. C. R. 361, the majority of the commission declined to take jurisdiction saying that the award of such resulting damages, loss of trade and the like should be determined by action brought in a court of competent jurisdiction. It was conceded that the language of the act was of doubtful interpretation, and therefore the commission, being a special tribunal of limited powers, should resolve the doubt in favor of courts where claims of this nature ordinarily belong. The minority opinion, in which three commissioners concurred, was that the decision of the majority was a surrender of jurisdiction clearly conferred and theretofore exercised without question.

The ruling in this case was considered by the circuit court of appeals, third circuit, in the Morrisdale Coal Case, supra, § 331, which involved a claim for damages on account of a prejudicial distribution of coal cars, wherein the court declined jurisdiction on account of the ruling of the supreme court in the Abilene Coal Case, as the rule claimed to be discriminatory had not been passed upon by the commission; and the court intimated. that the letter of the statute seemed to confer upon the commission the power to assess damages in every case of discriminatory practices. Its procedure, said the court, in making the assessment, constitutes no part of judicial procedure. In a court of law its findings and order are but prima facie evidence of the damages sustained.

In a later case the subject came again before the commission in the other class of cases involving claims for damages on account of the discriminating rule of distributing coal cars in time of shortage by the Pennsylvania Railroad, which was found by the commission to be illegal and discriminatory as against a class of shippers. These were the same coal car distribution rules that were involved in the litigation in the Morrisdale Coal Company Case, wherein the circuit court and the circuit court of appeals declined to take jurisdiction. The majority of the commission,

19 I. C. C. R. 356, were still of the opinion that it was not for them under the law to assess and determine the damages sustained by the complainant, and that it was a judicial question for the courts, and at the most any finding by the commission as to the amount of damages would be the expression of an opinion that could not be enforced by the commission, and therefore in any event resort must be had by the complainant to the courts.

Commissioner Prouty, in a dissenting opinion, considered that there was a clear distinction between the former case (17 I. C. C. R. 361), which he said was a case of individual wrong, which could be redressed in court consistently with the position declared in the Abilene Case, and this case, wherein discrimination inhered not against a particular shipper, but under a rule applicable to all shippers and therefore peculiarly within the jurisdiction of the commission.

The commission concluded in view of this position of the courts (at this time the opinion of McPherson, J., in the circuit court, 176 Fed. 748 [1910], was before the commission but the opinion of the circuit court of appeals had not then been reported) to order a further argument with respect to the amount of damages suffered by the complainant in the proceedings as the result of the discriminations that were found to exist. For discussion of the jurisdiction of the courts in such cases, see supra, § 331.

The jurisdiction of the commission in awarding reparation seems to extend under the act to all cases where parties are prejudiced by any rate or regulation of the carrier which is declared by the commission unreasonable or prejudicial. There seems to be no basis for distinction in the ascertainment of damages—if they are proximate so as to be cognizable in law, and not consequential, that it, speculative-because they require weighing of evidence, and are not determined by merely a calculation of the figures of rates. In any case the award of the commission is only advisory and must be confirmed by the court.

§ 388. Jurisdiction of federal and state courts in reparation actions. Under the section as amended in 1910 the complainant in a reparation case, or any person for whose benefit the order is made, may bring the suit for the damages awarded by the commission in "any State Court of general jurisdiction having jurisdiction of the parties." The section specifically provides for the

procedure in the suit, if brought in the circuit court of the United States, that is, that it should proceed like other civil suits for damages; that the finding and order of the commission shall be prima facie evidence of facts and further provides as to liability for costs, taxation of attorney's fee, and the joinder of parties both as plaintiffs and defendants. The limitation provision requires that the suit must be filed in the circuit court or state court within one year from the date of the order. Such a suit, if brought in the state court, would necessarily be controlled in its procedure by the law of the forum. Whether a state court would be bound to assume jurisdiction of a cause of action created by federal statute, see supra, § 48, on Federal Actions in State Courts, also Hoxsie v. N. Y., N. H. & H. R. Co., 82 Conn, 352. In the suits in the circuit courts of the United States for the recovery of reparation damages there is no exception to the general provision of the judiciary act requiring $2,000* as a minimum amount in controversy. The suit if brought in the circuit court of the United States proceeds in all respects like other civil suits for damages in that court subject to the provision of the section. The provision in the section for the joining of parties as plaintiffs who may be awarded damages by a single order of the commission may have been inserted on account of this jurisdictional amount in controversy required by the judiciary act, and in case of such joinder it would seem that the aggregate of the claims thus authorized to be included in the action would be the amount in controversy. In suits for reparation the action may be brought by the party making the complaint, or by the party for whose benefit the order is made.

§ 389. The prima facie effect of the commission's orders.The complaints for reparation are now the only cases wherein the commission is required under section 14 to report its findings of fact, and where their report with the findings of fact is made prima facie evidence. The subject of the prima facie effect of the findings of fact by the commission was considered by the circuit court of appeals of the third circuit in a reparation case, W. N. Y. & P. R. Co. v. Penn. Refining Co., 137 Fed. 343, in 1905, under the act before its amendments. The court, while

* $3,000.00 is the jurisdictional limit under the new Judicial Code hich takes effect January 1, 1912.

sustaining the constitutionality of the provision as within the power of congress in regulating the rules of evidence, held that it was only the findings of fact which the law made prima facie evidence, and that the opinions and arguments and regulations of the commission were not made prima facie evidence, or evidence of any kind in any judicial proceedings. The findings of fact must therefore be offered in evidence, unaccompanied with extraneous matter calculated to confuse or mislead. The causes of action in the case of reparation must be included in an order of reparation made by the commission. It was held in this case also that the receivers of a railroad who had been finally discharged before the making of the order of reparation, were not liable.

§ 390. The procedure in actions in court.-Before the amendment of 1906 the aid of the courts was necessary to enforce the orders of the commission other than for the payment of money. After that amendment the orders of the commission were directly enforcible, but with jurisdiction in the courts to enjoin or suspend any order of the commission. This jurisdiction of the circuit courts over the orders of the commission under the act of 1910 is now vested in the commerce court.

The only suits under the act as amended to be brought in the circuit court are those to enforce the reparation orders of the commission, wherein the state court will have concurrent jurisdiction, and also, it may be added, suits in circuit courts to recover penalties from the carriers for disobedience of other orders. Under the new federal code of procedure, this jurisdiction is vested in the district courts.

Under this new procedure the decisions as to the necessary and proper parties and the procedure in the circuit court which were rendered before the amendment of the act have only a limited application. In the Texas & Pacific Case, 162 U. S. 197, 40 L. Ed. 940, supra, it was held by the supreme court that the Interstate Commerce Commission was a body corporate, with the legal capacity to be a party plaintiff or defendant in the federal courts and that proceedings in the circuit courts to enforce the orders of the commission could be filed by any person interested therein or by the commission itself as the party complainant.

It was also held that testimony in the circuit court was not limited to that taken before the commission, that is, either party may introduce other testimony, see N. O. & T. P. R. Co. v. Com

mission, 162 U. S. 184, 40 L. Ed. 935. The supreme court however expressed disapproval of such a method of procedure on the part of the railroad companies, in withholding a large part of their evidence from the commission, and first introducing it in the circuit court, and said that the purposes of the act called for a full inquiry by the commission in the first instance. It was uniformly held in such suits to enforce the orders of the commission that the burden rested upon the railroad to show the orders to be erroneous. See Commission v. S. N. Ry. Co., 102 Fed. 709; and Same v. C., B. & Q. R. Co., 94 Fed. 272.

It was held in Nayler v. Lehigh Valley R. Co., 188 Fed. 860 (1911), C. C. Pa., that a suit to enforce an order for reparation was one in tort for damages, and that the State Procedure Act requiring affidavits of defense in suits upon contracts did not apply to such a proceeding.

§ 391. The judicial review of the commission's orders.— When the amendatory act of 1906 was before congress, the question of the regulation and the exercise of the judicial power in enjoining and suspending any order or requirement of the commission, was the subject of extended discussion, and the provisions of the act of 1906, including suits against the commission, were the result of a compromise between the opposing parties of what was called the "broad review" and a "narrow review." Under the act as amended in 1906, provision was made for the filing of these suits to set aside, annul or suspend any order of the commission in the districts, where the carrier against whom the order or requirement was made had its principal operating office, and jurisdiction to determine such suits was vested in the circuit courts; and under the provisions of the Expedition Act, which was made applicable, finally determined in the circuit court by the circuit judges of such circuit and appealed directly to the supreme court. A number of cases have been determined both in the circuits, and some by the supreme court, which have been cited in connection with different subjects involved.

The amendatory act of 1910 provided also for the establishment of the commerce court (Appendix), and that court was vested with jurisdiction of all cases brought to enjoin, set aside, annul or suspend in whole or in part any order of the commission. All of the provisions of the act of 1906 regulating the venue in such suits are omitted in the re-enacted section of

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