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§ 392. The jurisdiction of the circuit court.-The suit of the party claiming reparation under an order of the commission is to be brought in the circuit court of the United States in the district, wherein he resides and in which is located the principal operating office of the carrier, or through which the road of the carrier runs. In Interstate Commerce Commission v. W. N. Y. & Pa. R. Co., 82 Fed. 192, the court said that the violation within the judicial district of an order of commission by any one of the defendants or one of the parties to a common arrangement for interstate shipments, was violation or disobedience of all the parties defendant, where the parties were all acting under a common arrangement, and that all of them were subject to the jurisdiction of the court wherein any of them were located.

§ 393. The right of appeal under amended act. The provisions for appeal under the act of 1906, and the original act prior to the amendment of that year, are now superseded by the provisions of the act of 1910 relating to the commerce court, to which is given all the jurisdiction relating to cases brought to enjoin, to set aside, annul or suspend in whole or in part any order of the commission, which have been heretofore vested in the circuit court. Under this commerce act, all appeals are taken to the Supreme Court.

Suits for reparation in the United States circuit courts are conducted as other suits and are subject to the rights of appeal applicable in the federal circuits; and if brought in the state courts, to the law regulating appeal in the state courts.

§ 394. Jurisdiction of the courts in reviewing the orders of the commission.—Under the act as amended the only court having jurisdiction over the orders of the commission other than for the enforcement of claims for reparation or for the recovery of penalties will be the newly established commerce court. See

§ 391. The commerce court in its earliest decisions rendered soon after its organization has indicated the limitation of its jurisdiction in reviewing the orders of the commission. Thus in case No. 2, decided July 20, 1911, of the Atchison Topeka & Santa Fe、 Railroad Co. et al., petitioners, v. the Interstate Commerce Commission in determining the right of the railroads to make a charge for industrial track service in Los Angeles where it suspended

the order of the commission prohibiting such charge, the court said that the conclusion of the commission that the charge of violative of the commerce act was a conclusion of law and of course was open to inquiry in the commerce court. In the examination of the report of the commission the court was limited to the opinion of the majority of the commission, the views of the minority not being open to consideration. In this the court followed the view expressed by the supreme court in Interstate Commerce Commission v. Del. L. & W. R. Co., 220 U. S. 235, 55 L. Ed. —, wherein the supreme court held that findings of fact made by the interstate commerce commission in a proceeding for redress for unlawful discrimination in railway rates were not open to review in the courts.

The commerce court also considered the same question of the limitation of its jurisdiction in a rate case (Case No. 5), of the Receivers and Shippers Association of Cincinnati v. Interstate Commerce Commission, decided July 20, 1911, wherein it affirmed the order of the commission as to rates from Cincinnati to Chattanooga. The court said that it had no power to fix rates and could not say that the elements to the commission took into consideration in fixing the schedule complained of were improper for the commission to consider, and therefore, could not conclude that the commission based a schedule of rates upon improper grounds.

The same view was expressed by the circuit judges of the fifth circuit in L. & N. R. Co. v. Interstate Commerce Commission, 184 Fed. 119, which was decided by that court in April, 1910, before the commerce court was extended so that the circuit court was then vested with the jurisdiction since transferred to the commerce court. The court said that in a suit to enjoin the enforcement of a rate it did not act as an appellate rate making commission, but its office was to see that the commission did not exceed its power and not to determine whether it erred in the exercise of it.

To the same effect see M. K. & T. R. R. Co. v. Interstate Commerce Com., 164 Fed. 645 (1908), by the circuit judges of the eighth circuit. It was there held that the court would take into consideration evidence other than that before the commission, but the presumption was that the order of the commission was valid

and that the burden was upon the party attacking to make a clear case. See also the decisions of the supreme court construing the limits of the judicial power over the decisions of the commission, supra, § 52.

§ 395. The commerce court on the parties entitled to apply for review of commission's orders.-In Proctor & Gamble Co. v. United States, it was claimed that the commerce court had no jurisdiction over the complaint filed by the shipper which had been presented to the interstate commerce commission and disallowed, and then the proceeding had been filed in the circuit court seeking to set aside the order of the commission. This was a complaint against the exaction of demurrage on private cars, see supra, § 254. The jurisdiction of the court was denied on the ground that the petitioner was a shipper and the interstate commerce commission, having merely dismissed the complaint which was made to it and granted no affirmative relief, that there was nothing in the order of dismissal which it entered that afforded any basis for action, and that it was only the carrier aginst whom the order is made in favor of the shipper that can bring the case for review into the commerce court, and that the shipper was concluded by the action of the commission, whatever it might chance to be. But the court declined to entertain this view and said that the right of resort to the court extended to every one injuriously affected by the order of the commission. It was therefore held that the action of the commission, having the effect of an adverse decision with respect to the matter involved, even though negative in character, was an order which the court could enjoin or set aside. The petitioner, therefore, correctly came into the commerce court, as it could previously have gone into the circuit court of the United States, the requisite amount being involved and the case being one arising under the federal law, to have the action of the commission dismissing its complaint set aside and the demurrage charge disallowed, if that should be the conclusion reached with regard to it, either by direct decree, or by remanding the case to the commission with directions to sustain the complaint. The court therefore entertained the petition, and dismissed the case upon consideration of the merits.

§ 396. The finality of the orders of the commission.-It necessarily follows from this limitation of the power of judicial review, that the administrative orders of the commission in the exercise of this jurisdiction in determining the reasonableness of a railroad rate or regulation are final. In the words of the supreme court in the Coal Regulation Case, supra, "power to make the order and not the mere expediency or wisdom of having made it, is the question," when brought into court.

In making such administrative orders the commission has necessarily a wide discretion and many factors may require consideration in any specific case. The conclusion may be the determination of a mixed question of law and fact. The announcement by the commission that a certain factor is controlling in the consideration of a rate or regulation would be a conclusion of law, which would be subject to judicial review, though the conclusion of the commission upon a reasonableness of the rate or regulation without any such conclusion of law as to any controling factor would not be subject to review. This was illustrated in the decision of the supreme court in the So. Pacific Case, supra, 174, that the fixing a rate for the encouragement of certain business interests was beyond the power of the commission. If the commission, however, had simply determined the reasonableness of the rate without recognizing any such controlling factor in the determination, its conclusion would not have been open to review. In this connection, it should be noted that there is no requirement in the Act of any statement by the commission of the reasons of its conclusions.

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§ 397. Section 16a.

SECTION 16A.

$ 397. Section 16a.-SEC. 16a. (Added June 29, 1906.) That after a decision, order, or requirement has been made by the

[Commission may grant rehearings.]

Commission in any proceeding any party thereto may at any time make application for rehearing of the same, or any matter determined therein, and it shall be lawful for the Commission in its discretion to grant such a rehearing if sufficient reason therefor [Application for rehearing shall not operate as stay of proceedings, unless so ordered by commission.]

be made to appear. Applications for rehearing shall be governed by such general rules as the Commission may establish. No such application shall excuse any carrier from complying with or obeying any decision, order, or requirement of the Commission, or operate in any manner to stay or postpone the enforcement thereof, without the special order of the Commission. In case a rehearing is granted the proceedings thereupon shall conform as nearly as may be to the proceedings in an original hearing, except as the Commission may otherwise direct; and if, in its judgment, after such rehearing and the consideration of all facts, including those arising since the former hearing, it shall appear that the original decision, order, or requirement is in any respect unjust or unwarranted, the Commission may reverse, change, or [Commission may, on rehearing, reverse, change, or modify order.]

modify the same accordingly. Any decision, order, or requirement made after such rehearing, reversing, changing, or modifying the original determination shall be subject to the same provisions as an original order.

It would seem that this section was needless, though it was recommended by the commission, as the right to review and to modify its own decisions probably existed under the very comprehensive grant of powers under the preceding sections.

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