of accounts. It authorizes examinations to be made by experts appointed by the Commission, and imposes a penalty of fine of not more than $5,000 or imprisonment of not more than two years upon any examiner who divulges any knowledge that may come to him in the performance of his duties.

TOPIC A-ADMINISTRATIVE NATURE OF THE COMMISSION.

[See Chapter XLII.]

§ 1033. Nature of the Commission.

Under the Interstate Commerce clause of the Constitution Congress has the power to create a commission for the purpose of supervising, investigating, and reporting upon matters or complaints connected with or growing out of interstate commerce. Kentucky & I. Bridge Co. v. Louisville & N. R. R., 37 Fed. 567, 2 L. R. A. 289, 2 Int. Com. Rep. 351 (1889). By the acts of Congress creating the Commission, providing that it shall have an official seal and making it lawful for it to apply by petition for the enforcement of its orders, the Interstate Commerce Commission is made a body corporate with legal capacity to be a party plaintiff or defendant in the Federal courts. Texas & P. Ry. v. Interstate Commerce Commission, 162 U. S. 197, 40 L. Ed. 940, 16 Sup. Ct. 666, 5 Int. Com. Rep. 405 (1896). The Interstate Commerce Commission is a special tribunal whose duties, though largely administrative, are sometimes semi-judicial; but it is not a court empowered to render judgments and enter decrees. Kentucky & I. Bridge Co. v. Louisville & N. R. R., supra; Toledo Produce Exchange v. Lake Shore & M. S. R. R., 3 Int. Com. Rep. 830 (1891).

1034. Powers of Commission.

The Commission derives all its powers from the act, and it can exercise no powers not granted by the act. Thus it has no authority to administer the anti-trust law, or even to determine whether it has been violated. Sprigg v. Baltimore & O. R. R., 8 Int. Com. Rep. 443 (1900). Nor to enforce the provisions of a State Constitution. Railroad Commission of Kentucky v. Louisville & N. R. R., 10 Int. Com. Rep. 173 (1904). Or to investigate any action of a carrier committed prior to the time when the act went into effect. Holbrook v. St. Paul, M. & M. Ry., 1 Int. Com. Rep. 323 (1887); White v. Michigan Cent. R. R., 2 Int. Com. Rep. 641 (1889).

Thus the Commission has no power to enforce contracts, nor has it any general power to manage business of carriers. Traders & Travelers Union v. Phila. & R. R. R., 1 Int. Com. Rep. 371 (1887). So it has no authority to control commissioners of immigration, and cannot do so indirectly by inhibiting railroad companies from carrying out arrangements made by them with the commissioners. Savery v. New York C. & H. R. R., 2

cars.

Int. Com. Rep. 210 (1888). It has no power to grant redress for the failure of a carrier to comply with its common-law duty to furnish refrigerator Re Transportation of Fruit, 10 Int. Com. Rep. 360 (1904). Or any particular equipment of cars, or in fact any cars at all. Scofield v. Lake Shore & M. S. R. R., 2 Int. Com. Rep. 67 (1888); Rice v. Cincinnati, W. & B. R. R., 3 Int. Com. Rep. 841 (1891). So the act noes not confer upon the Commission authority to make an order affirmatively requiring a railway carrier to deliver carloads of interstate freight to a connecting carrier. Railroad Commission of Kentucky v. Louisville & N. R. R., 10 Int. Com. Rep. 173 (1904). Or to determine the right of milling in transit. Diamond Mills v. Boston & M. R. R., 9 Int. Com. Rep. 311 (1902). The Interstate Commerce Commission cannot inquire whether railroad companies act wisely or unwisely, fairly or unfairly, between themselves in making rates, forming lines, and establishing differentials; but its inquiry is limited to the question whether the situation created by the companies violates the Act to Regulate Commerce. New York Produce Exch. v. Baltimore & O. R. R., 7 Int. Com. Rep. 612 (1898).

TOPIC B- POWER TO INVESTIGATE AND MAKE ORDER.

[See Chapter XLI.]

1035. Investigation by Commission.

On the other hand, the Commission may investigate any supposed violation of the act, even on its own motion. Re Atlanta & W. P. R. R.. 2 Int. Com. Rep. 461 (1889); Re Grand Trunk Ry., 2 Int. Com. Rep. 496 (1889). It has authority to inquire into the management of the business of common carriers, and to require the attendance and testimony of witnesses, the production of books and papers, tariffs and contracts, relating to any matter under investigation; and to enforce its authority in this respect the Commission may invoke the aid of a court of the United States. Re Rates & Charges on Food Products, 3 Int. Com. Rep. 151 (1890). It may inquire as to division of alleged unlawful joint rate. Warren-Ehret Co. v. Central Ry. of New Jersey, 8 Int. Com. Rep. 598 (1900). Its jurisdiction extends to a case of alleged unlawful prejudice and disadvantage to shippers of outbound package freight through enforcement by carriers of a regulation providing for the earlier closing of depots used for the reception of such freight. Cincinnati Chamber of Commerce and Merchants' Exchange v. Baltimore & O. S. W. Ry., 10 Int. Com. Rep. 378 (1904).

The Act to Regulate Commerce applies to the transportation of export and import traffic, and the jurisdiction of the Commission over such traffic is not denied, but is distinctly affirmed and rather enlarged by the decision of the United States Supreme Court in Texas & P. R. Co. v. Interstate

Commerce Commission, 162 U. S. 197, 40 L. Ed. 940, 16 Sup. Ct. 666, 5 Int. Com. Rep. 405. Re Export and Domestic Rates on Grain, 8 Int. Com. Rep. 214 (1899).

§ 1036. Report of Commission.

The report of the Commission should be framed after the manner of a Master's report to a Court of Chancery. It is not sufficient for the Commission in a report of its findings of fact and conclusions, to make statements in such a general way as not to disclose its view upon particular phases of the evidence, or its conclusions of law upon facts found with reference to the particular issues in the case, and make up the report of mere conclusions. In the case of Interstate Commerce Commission v. Louisville & N. R. R., 73 Fed. 410, 5 Int. Com. Rep. 656 (1896), Judge Clark said: "The procedure in a complaint before the Commission is prescribed in section 13 of the act, and by section 14 the Commission is required to make a report in writing in respect thereto, which shall include the findings of fact upon which the conclusions of the Commission are based, and such findings so made are to be deemed prima facie evidence as to each and every fact found in any judicial proceeding thereafter had. The Commission is authorized to provide for the publication of its reports and decisions, and for the distribution thereof. Other sections of the act, not necessary to be set out herein, make it evident, in my opinion, that while the investigation and report of the Commission and its order thereon, as stated, do not constitute a judicial proceeding, still it was the intention of Congress that the procedure should substantially conform to that before a court charged with the duty of finding the facts, and giving judgment thereon, or to the investigation and report of a referee or special master in chancery, passing on both facts and law. Congress having provided for such investigation and report in general terms only, it is not to be doubted that substantial conformity to a judicial proceeding was contemplated. And the importance of the Commission's action, taking substantially the form of a judicial proceeding, is apparent when it is recognized that the Commission is composed of men of ability and experience, selected for this position with reference to their particular qualifications therefor, and whose entire time is devoted to questions arising under this act. This gives to the Commission's finding and opinion great weight, and entitles it to great consideration, both by the parties affected and by the courts, when called upon to enforce obedience to its mandates. For the Commission's investigation and opinion to have this intended value, however, it should, in fact, conform to the purpose of Congress in requiring such proceedings. It is not sufficient, therefore, in a report of its findings of fact and conclusions, to do so in such general way as not to disclose its views upon particular phases of the evidence, or its conclusions of law upɔn facts found with reference to the particular issues in the case. Stated in

another form, it is not sufficient for the report to be made up of mere conclusions. Its opinion or report should show what the issues in the case are, and what facts it finds in regard to such issues. The report should make suitable reference to the evidence adduced in regard to any particular question, where there is a conflict in the proof, showing how the Commission settles the disputed fact; or, if the evidence in regard to any issue is undisputed, state that fact. In other words, the report should give the parties to be affected, as well as the court, in any judicial proceeding afterwards instituted, definite and distinct information as to what was found as facts, and the Commission's opinion thereon, such as would be necessary to make a judicial opinion sufficient and satisfactory for the purpose of ordinary litigation. Now, the report of the Commission in this case does nothing of this kind. It was not intended to cast upon the courts the labor of an original and independent examination, as in a case instituted here in the first instance. If so, action by the Commission would be idle. The report should on all issues make a distinct showing, so that on its face it would be prima facie good as required under the act." See, also, Western N. Y. & P. R. R. v. Penn. Refining Co., 137 Fed. 343 (1905).

This is the principle on which the Commission proceeds; and it is its present practice to report its findings of fact separately from its conclusions. But neither before the above decision nor since does the Commission report cumulative evidence or mere details of evidence already embraced in substantial facts stated, upon which its findings are made. Riddle v. Pittsburg & L. E. R., 1 Int. Com. Rep. 773 (1888).

§ 1037. Opinion of Commission,

The Commission does not give opinions on abstract questions. Pennsylvania Co. v. Louisville, N. A. & C. R. R., 2 Int. Com. Rep. 603 (1889). So it will not construe the act before violation thereof is charged. Re Order of Railway Conductors, 1 Int. Com. Rep. 18 1, C. C. 8 (1887); Re Theatrical Rates, I Int. Com. Rep. 18 (1887); Re Inmates of Nat. Homes, I Int. Com. Rep, 73, 75 (1887); Boston & A. R. R. v. Boston & L. R. R., I Int. Com. Rep. 571 (1887). Nor will it express an opinion upon facts not brought before it by a petition within its jurisdiction. Re Iowa Barb Steel Wire Co., 1 Int. Com. Rep. 605 (1887); Re United States Commission of Fish and Fisheries, 1 Int. Com. Rep. 606 (1887). And it will not make rules as to free baggage until violation of act is charged. Re Order of Railway Conductors, Traders & Travelers Union v. Phila. & Reading R. R., 1 Int. Com. Rep. 18, 62, 315, 371 (1887).

TOPIC C-POWER OVER RATES.

[See Chapter XL.]

§ 1038. Early difference of opinion.

The Interstate Commerce Commission has no power under the Interstate Commerce Act to fix absolute or maximum rates. Cincinnati, N. 0. & T. P. Ry. v. Interstate Commerce Commission, 162 U. S. 184, 40 L. Ed. 935, 16 Sup. Ct. 700, 5 Int. Com. Rep. 391, B. & W. 424 (1896); Interstate Commerce Commission v. Cincinnati, N. O. & T. P. Ry., 167 U. S. 479, 42 L. Ed. 243, 17 Sup. Ct. 896 (1897); Interstate Commerce Commission v. Alabama Midland Ry., 168 U. S. 144, 42 L. E. 414, 18 Sup. Ct. 145, B. & W. 433 (1897).

This question was vigorously discussed before its final settlement by the Supreme Court. The opinion of the federal courts was practically unanimous against the existence of the power. Interstate Commerce Commission v. Baltimore & O. R. R., 43 Fed. 37 (1888); Interstate Commerce Commission v. Lehigh Valley R. R., 5 Int. Com. Rep. 643 (1896); Interstate Commerce Commission v. Northwestern Ry., 5 Int. Com. Rep. 650 (1896); Interstate Commerce Commission v. Louisville & N. R. R., 5 Int. Com. Rep. 656 (1896); Interstate Commerce Commission v. Alabama Midland Ry., 5 Int. Com. Rep, 685 (1896).

§ 1039. Decision of the Supreme Court.

It was finally decided by the Supreme Court of the United States in Interstate Commerce Commission v. Cincinnati, N. O. & T. P. Ry., 167 U. S. 479, 42 L. Ed. 243 17 Sup. Ct. 896 (1897). Mr. Justice Brewer thus discussed the question:

"Before the passage of the act it was generally believed that there were great abuses in railroad management and railroad transportation, and the grave question which Congress had to consider was how those abuses should be corrected and what control should be taken of the business of such corporations. The present inquiry is limited to the question as to what it determined should be done with reference to the matter of rates. There were three obvious and dissimilar courses open for consideration. Congress might itself prescribe the rates, or it might commit to some subordinate tribunal this duty, or it might leave with the companies the right to fix rates, subject to regulations and restrictions, as well as to that rule which is as old as the existence of common carriers, to wit, that rates must be reasonable. There is nothing in the act fixing rates. Congress did not attempt to exercise that power, and, if we examine the legislative and public history of the day, it is apparent that there was no serious thought of doing so.