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Rep. 187, 2 I. C. C. 309 (1888); Riddle v. Baltimore & O. R. R., 1 Int. Com. Rep. 701, I. C. C. 372 (1888). A complaint against a railroad company stating that it had been previously in the hands of a receiver who was now president, was allowed to be amended so as to show existence of receivership which it appeared on hearing was still in existence. Reynolds v. Western New York & P. Ry., 1 Int.,Com. Rep. 685, 1 I. C. C. 347 (1887).

TOPIC C- PROPER PARTIES.

§ 1051. Person interested as complainant.

Only a person interested in his own right can file a complaint. Thus a coal operator not being damaged by the failure of a railroad company to establish a rate upon a class of coal not produced at his mine, cannot complain of such a rate. McGrew v. Missouri Pac. R. R., 8 I. C. C. Rep. 630 (1901). The person aggrieved should complain in his own name; a complaint by a ticket broker having no interest in the transaction will not be entertained. Ottinger v. Southern Pac. R. R., 1 I. C. C. Rep. 607 (1887). But the interest of the petitioner, by the provision of the act, need not be direct; therefore the defendants are not entitled to a dismissal of a complaint of unlawful rates, on the ground that the petitioners, being merely commission merchants, can sustain no direct or material damage under the rates in question. James v. Canadian P. R. R., 4 Int. Com. Rep. 274, 5 I. C. C. 612 (1893); Milk Producers' Protective Assoc. v. Delaware, L. & W. Ry., 7 I. C. C. Rep. 92 (1897); Central Y. P. Assoc. v. Vicksburg, S. & P. R. R., 10 I. C. C. Rep. 193 (1904).

1052. Complaint by association.

A corporation whose object is to promote the marketing of live stock at Chicago in the interest of its members may, under the Act to Regulate Commerce, § 13, maintain a proceeding to correct an unreasonable freight rate on live stock shipped to Chicago, as its members, for whose general benefit and protection it was formed, have a vital interest in such a proceeding. Cattle Raisers' Assoc. v. Fort Worth & D. C. R. R., 7 I. C. C. Rep. 513 (1897); Chicago Live Stock Exchange v. Chicago G. W. R. R., 10 I. C. C. Rep. 428 (1905). So a Milk Producers' Association, whether representing its own members, or specially authorized to represent other shippers, or assuming in addition to represent shippers engaged in the same industry on some of the defendant lines, was entitled to bring and maintain this proceeding, affecting rates on milk supplied for a common market, against all the defendants engaged in carrying for that market. A defendant carrier is not entitled to have a complaint dismissed as to it "because of the absence of direct damage to the complainant," and it is the duty of the Commission, under express direction in the act, to exe

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cute and enforce" the provisions of the statute. Milk Producers' Protective Assoc. v. Delaware, L. & W. R. R., 7 I. C. C. Rep. 92 (1897). And while an association of shippers has no direct interest in the determination of the question as to whether divisions or allowances from published tariff rates, made by defendants to tap lines owned or controlled by other shippers, constitute departures from the published rates, it has such an indirect interest as entitles it, under the statute, to maintain a proceeding to have such division declared unlawful. Central Yellow Pine Assoc. v. Vicksburg, S. & P. R. R., 10 I. C. C. Rep. 193 (1904). If the complaint is brought in the name of the association, it seems that in a proper case reparation may be ordered to individual members; but the better practice, in view of the unsettled state of the law in this respect, and in order that all phases of the question may be presented to the court, is for the members of the association seeking damages to file claims in the nature of intervening petitions. When such a petition is filed, it is considered the beginning of the action in all its subsequent stages; consequently the suit of the members of a cattle raisers' association for the recovery of damages should be treated as having been begun by the filing on their behalf of the original petition by the association itself, although they subsequently intervened. Cattle Raisers' Assoc. v. Chicago, B. & Q. R. R., 10 I. C. C. Rep. 83 (1904).

$1053. Board of trade.

In the case of Texas & Pacific Ry. v. Interstate Commerce Commission, 162 U. S. 197, 40 L. Ed. 940, 16 Sup. Ct. 666, 5 Int. Com. Rep. 405 (1896), the complaint was originally made "by certain corporations of New York, Philadelphia and San Francisco, known as boards of trade, or chambers of commerce, which appear to be composed of merchants and traders in those cities, engaged in the business of reaching and supplying the consumers of the United States with imported luxuries, necessities, and manufactured goods generally, and as active competitors with the merchants at Boston, Montreal, Philadelphia, New Orleans, San Francisco, Chicago, and merchants in foreign countries who import direct on through bills of lading issued abroad." The defendants argued that the complaint was not legally made. The Commission and, subsequently the courts, held that the complaint might be entertained. In the Supreme Court Mr. Justice Shiras said: "We shall assume, in the disposition of the present case, that a valid complaint may be made before the Commission, by such trade organizations, based on a mode or manner of treating import traffic by a defendant company, without disclosing or containing charges of specific acts of discrimination or undue preference, resulting in loss or damage to individual persons, corporations, or associations. We do not wish to be understood as implying that it would be competent for the Commis

sion, without a complaint made before it, and without a hearing, to subject common carriers to penalties."

1054. State Railroad Commission.

The repeal of the law creating the railroad commission of Florida does not operate as a withdrawal or dismissal of a complaint brought in its name before the Interstate Commerce Commission for the real parties in interest. Railroad Commission of Florida v. Savannah, F. & W. R. R., 3 Int. Com. Rep. 688, 5 I. C. C. 136 (1891).

1055. Complainant not coming with clean hands.

The defendant has sometimes objected to the maintenance of the complaint on the ground that the complainant did not come before the Commission with clean hands. Thus in the case of the Interstate Commerce Commission v. Southern Pacific Company, 132 Fed. 829 (1904), there was involved an order of the Commission forbidding the enforcement by defendants therein of a rule whereby they reserved to themselves, as initial carriers, the right of routing citrus traffic beyond their own lines and denied this privilege to shippers. The defendants contended that, even if the rule was unlawful, the complainants (shippers) were not entitled to relief, because they had used the privilege of routing for the purpose of securing rebates and desired to retain it for that purpose. In overruling this contention the court said: "With reference to defendants' contention, that the complainants before the Interstate Commerce Commission were there with unclean hands, it is only necessary to say, that, in this court, the Commission represents the public at large and therefore no participation by said complainants in the unlawful practice of rebates could bar relief."

A similar objection was made in the case of Tift v. Southern Railroad, 10 1. C. C. Rep. 548 (1905). The complainants were members of an association which, it was claimed, constituted an illegal monopoly. The Commission held that this fact was immaterial. Mr. Commissioner Clements said: "A proceeding like the present before this Commission, although instituted by and in the name of parties complaining of injury to themselves from alleged violations of law, is not a strictly private or personal suit into which a party complainant must enter with clean hands,' but is a proceeding for the enforcement of a public duty as well as of an individual or private right.

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damage to complainants.' In these cases, therefore, the complaint is in the nature of an information and the complainants occupy, in part, at least, the attitude of informers." After citing the decision of the Circuit Court just examined, he continued: The same principle applies in a case like the present before this Commission. The complainants represent 'the public at large' as well as themselves. The public interested includes consignees, consumers and others, as well as shippers and producers or manufacturers." And see to the same effect Chicago Live Stock Exchange v. Chicago G. W. R. R., 10 I. C. C. Rep. 428 (1905).

A fortiori the fact that others associated with the complainants are acting illegally will not affect the validity of the complaint. Thus the fact that the members of a corporation organized to promote the marketing of live stock at a given city are violating the anti-trust law will not prevent the corporation from maintaining a proceeding to correct an unreasonable freight rate on live stock shipped to such city. Cattle Raisers' Assoc. v. Fort Worth & D. C. R. R., 7 I. C. C. Rep. 513 ( ). So the fact that a certain association constitutes an illegal monopoly will not affect the right of certain members of the association, constituting but a portion of its membership, to complain. Tift v. Southern R. R., 10 I. C. C. Rep. 548 (1905).

§ 1056. Proper parties defendant.

Where a through rate is in question, all the carriers participating in the rate are proper parties, and may be joined as defendants. Warren-Ehret Co. v. Central R. R., 8 I. C. C. Rep. 598 (1900); Cattle Raisers' Assoc. v. Chicago, B. & Q. R. R., 10 I. C. C. Rep. 83 (1904); Texas & P. R. R. v. Interstate Commerce Com., 162 U. S. 197, 40 L. Ed. 940, 16 Sup. Ct. 666; 5 Int. Com. Rep. 405 (1896).

1057. Necessary parties defendant.

All carriers whose appearance is necessary to settle the controversy must of course be present. Riddle v. Pittsburgh & L. E. R. R., 1 Int. Com. Rep. 773, 1 I. C. C. 490 (1888); Michigan Congress Water Co. v. Chicago & G. T. R. R., 2 Int. Com. Rep. 428, 2 I. C. C. 594 (1889). And no carrier can be affected by the order of the Commission unless he was a party to the proceeding. Poughkeepsie Iron Co. v. New York C. & H. R. R. R., 3 Int. Com. Rep. 248, 4 I. C. C. 195 (1890). The reason for securing the appearance of all interested carriers is clear. The reasonableness of rates cannot be fairly determined in a proceeding to which some of the parties responsible for such rates are not parties. New Orleans Cotton Exch. v. Cincinnati, N. O. & T. P. R. R., 2 Int. Com. Rep. 289, 2 I. C. C. 375 (1888); Michigan Congress Water Co. v. Chicago & G. T. R. R., 2 Int.

Com. Rep. 428, 2 I. C. C. 594 (1889); Kentucky & I. Bridge Co. v. Louisville & N. R. R., 2 Int. Com. Rep. 102, 2 I. C. C. 162 (1888).

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When complainants desire to test the justice or legality of the through rates from Frankfort to New York, the necessity of bringing in the parties who make the rates, not for forty-six miles merely but for the whole distance, is obvious. They must be brought in, first, because they have a right to be heard, and second, because an order made and purporting to control their action when they were not parties would be improper on its face, and in a legal sense ineffectual. If such an order could have any effect as against the initial road, it would only be to prevent its agents naming to shippers when they called for it an aggregate through rate; it would not prevent its making the same rate as now to South Wanatah, nor preclude the connecting road from making rates independently from South Wanatah eastward." Allen v. Louisville N. A. & C. R. R., 1 Int. Com. Rep. 621, I I. C. C. 199 (1887).

So where a leased road is made the party defendant, the operating road should be added as a party. Boyer v. Chesapeake, O. & S. W. Ry., 7 I. C. C. Rep. 55 (1897).

§ 1058. Supervening receivership.

The fact of a receivership for a defendant carrier subsequent to complaint should not interfere with the progress of a proceeding brought merely for the purpose of railway regulation. Trammell v. Clyde Steamship Co., 4 Int. Com. Rep. 120, 5 I. C. C. 324 (1892). Or for violations of the act in general. Troy Board of Trade v. Alabama Midland Ry., 4 Int. Com. Rep. 348, 6 I. C. C. 1 (1894).

1059. One of several joint parties.

But it is not necessary that all carriers should be joined as defendants who would be proper parties to the proceedings. Thus where a complaint is made of rates fixed by an association of carriers, it is not necessary to join all the carriers in the association; the one carrier against which the particular complaint is directed may be the only defendant. Page v. Delaware, L. & W. R. R., 6 I. C. C. Rep. 548 (1896). But see Minneapolis Chamber of Commerce v. Great Northern Ry., 4 Int. Com. Rep. 230, 5 I. C. C. 571 (1892). So a railroad company which participated in through rates is not a necessary, even if it is a proper, party to a proceeding by the Interstate Commerce Commission against another company for disobedience of an order of the Commission in the matter of such rates. 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 (1896). And one or more of several connecting carriers need not be made parties to a proceeding before the Interstate Commerce Commission against another connecting carrier for

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