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sion to make a report in writing in respect thereto, which shall state the conclusions of the Commission together with its decision, order or requirement in the premises, and such report shall, when there is an award of damages, include the findings of fact on which the award is made.85

When the Commission shall determine that any party complainant is entitled to an award of damages, it shall make an order directing the carrier to pay the complainant the sum to which he is entitled on or before a day named. These findings of fact and the order based thereon are prima facie evidence of the facts therein stated.86

Prior to the Amendment of March 2, 1889, the Commission held that a claim for damages "presents a case at common law in which the defendants are entitled to a jury trial," and under the then law awards for damages were not made.87 Since the Amendment to Section 16, awards may be made.

88

Of these provisions for award of damages, it has been said: "As to the provisions covering reparation cases, Congress is no longer dealing with those matters which concern the practical management and conduct of the business of carriers and the regulation thereof in futuro, in the interests of the public generally, but is conferring a private right of action upon those who have suffered actual damage, by reason of such carriers' violation of some requirement of the Act. The conferring of such right of action, though incident to its power to regulate commerce, is not a regulation thereof. It makes redress of a private injury, actually suffered, possible. It concerns the past and not the future conduct of the carrier, and, though this right of action for damages is qualified by making it dependent in certain cases upon the precedent award of reparation by the Commission, such award is not of the nature of the administrative functions conferred on

85 Sec. 14 of Act; Sec. 487, post. 86 Sec. 16 of Act; Sec. 521, post. 87 Heck v. East Tennessee, Va. & Ga. Ry. Co., 1 I. C. C. 495, 1 I. C. R. 775; Riddle v. New York, L. E. & W. P. Co., 1 I. C. C. 594, 1 I. C. R. 787; Lehigh Valley R. Co. v. Clark, 207

Fed. 717, 720, 125 C. C. A. 235; Note 88 below.

88 Rawson v. Newport N. & M. V. R. Co., 3 I. C. C. 266, 2 I. C. R. 626; MacLoon v. Chicago & N. W. R. Co., 5 I. C. C. 84, 3 I. C. R. 711, and practice of the Commission since.

that body. In reversing the Circuit Court of Appeals, the Supreme Court, without discussing the principles quoted, found that the report of the Commission conformed to the statute. Misrouting violates the laws and damage suffered may be awarded by the Commission.90

§ 255. Awards of Damages for Charging an Unjust and Unreasonable Rate. The statute provides that charges subject to the Act must be "just and reasonable. ''91 When this law is violated the Commission may make an "award of damages." The Circuit Court of Appeals held that before such an award can be made there must be a finding that the rate charged was unreasonable and the Commission must prescribe "a reasonable maximum rate to be observed by all," and "an order of reparation without such establishment of a reasonable maximum rate is beyond the power of the Commission and void. ''92 This decision was reversed by the Supreme Court in an opinion written by Mr. Justice Lamar who said:93

"But however desirable it may have been to deal with the entire matter at one time, the joinder of the two subjects was not jurisdictional. There was no such necessary connection between the two as to make the order of reparation void because of the absence of a concurrent provision establishing a rate for the future."

When a rate is advanced and the increased rate is condemned, the shipper having the legal right to have transportation at a reasonable rate, is clearly entitled to an award of

89 Lehigh Valley R. Co. v. Clark, 207 Fed. 717, 723; 125 C. C. A. 235, District Court affirmed except as to a portion of the attorney's fees, and Circuit Court of Appeals reversed, Mills v. Lehigh V. R. Co., 238 U. S. 473, 59 L. Ed. 1414, 35 Sup. Ct. 888; L. & N. R. R. v. Patterson, 269 U. S. 1, 70 L. Ed. 131, 46 Sup. Ct. 8; St. Louis & S. F. R. R. Co. v. Spiller, 274 U. S. 304, 71 L. Ed. 1060, 47 Sup. Ct. 635; Mo. Portland Cement Co. v. Director General, 88 I. C. C. 492.

90 McCaull-Dinsmore Co. V. Chicago G. W. Ry. Co., 14 I. C. C. 527;

Gus Momsen & Co. v. Gila Valley, G.
& N. Ry. Co., 14 I. C. C. 614; Good-
man Mfg. Co. v. Pennsylvania R. Co.,
26 I. C. C. 423; Newman Lumber Co.
v. Mississippi C. R. Co., 26 I. C. C.
97; Sec. 15 of Act; Sec. 498, post.
91 Sec. 1 of Act; Sec. 405, post.
92 Denver & R. G. R. Co. v. Baer
Bros. Mer. Co., 187 Fed. 485, 109 C.
C. A. 337; Commercial Club of Omaha
v. A. & S. Ry. Co., 27 I. C. C. 302, 314.

93 Baer Bros. Mer. Co. v. Denver & R. G. R. Co., 233 U. S. 479, 58 L. Ed. 1055, 34 Sup. Ct. 641.

95

damages by way of reparation measured by the amount paid in excess of the rate found to be unreasonable.94 Where, however, complaint is made of a rate already in existence and such rate is declared unreasonable at the date of the order of the Commission, a different question is presented. At what exact time did the rate become reasonable? Discussing this question in the Anadarko Cotton Oil Co. case, the Commission said: "The Commission is not justified in awarding damages in any case except on a basis as certain and definite in law and in fact as is essential to the support of a final judgment or decree requiring the payment of a definite sum of money. The test of reasonableness can be applied only by reference to and upon consideration of all pertinent facts, circumstances, and conditions affecting the rate in effect at any particular time. A rate reasonable in view of the circumstances and conditions when it is established may in course of time become unreasonable by virtue of changed circumstances and conditions. It is manifestly impractical for the carriers or the Commission in such a case to determine at what exact time in the gradual process of charges the rate becomes unreasonable."

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96

In the Burnham-Hanna-Munger case, no reparation was awarded for shipments moving prior to the date of the order, but awards were made for shipments moving after that date and during the time the order was enjoined. After two years from the date of the order therein advances were made, some of which were held to increase rates to a point where they were unreasonable. In determining the question arising in

94 Tift v. Southern Ry. Co., 10 I. C. C. 548; Tift v. Southern Ry. Co., 138 Fed. 753; Southern Ry. Co. v. Tift, 148 Fed. 1021; Southern Ry. Co. v. Tift, 206 U. S. 428, 51 L. Ed. 1124, 27 Sup. Ct. 709; Nicola, Stone & Myers Co. v. Louisville & N. R. Co., 14 I. C. C. 199; Central Yellow Pine Assn. v. Illinois Cent. R. Co., 10 I. C. C. 505; Illinois Cent. R. Co. v. Interstate Com. Com., 206 U. S. 441, 51 L. Ed. 1128, 27 Sup. Ct. 700; Russe & Burges v. Interstate Com. Com., 193 Fed. 678, Op. Com. Ct. No. 18 p. 311;

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an investigation of these increases, the Commission said: "We are now prescribing what may well be considered a new rate adjustment," and under such conditions reparation was denied.97

The Commission having found a rate unreasonable from the date of that order, reparation should be allowed, the Commission saying: "In every case like this the Commission must fix the point of time at which the rate becomes unreasonable, must determine when shippers were entitled, and when carriers ought to have established the rate found reasonable. Manifestly each case must depend upon its own facts, and the complainant must assume the burden of showing that the rates paid have been unreasonable. ''98

When a shipper owning a commodity employs a common carrier to transport it, it is his right to have such transportation at a reasonable charge. If the carrier exacts more than a reasonable charge, the shipper's rights have been invaded to the extent that the charge exacted exceeds a reasonable one. The shipper is entitled to have his injury wiped out by a return to him of the amount paid in excess of what he was lawfully bound to pay. This is the measure of his minimum recovery. Under some circumstances, this amount may be augmented to recoup the shipper for the loss of his business. maliciously caused by the common carrier.

This rule has not been consistently followed by the Commission. In some cases, reparation has been denied, as in the Anadarko Cotton Oil case, supra, because there was a general readjustment of rates. This practice seems to have finally become a settled policy of the Commission, although its legality is questioned in many quarters.99 In other cases rates have been held unreasonable, but although the facts remained unchanged for two years prior to the order, reparation was denied or dated from some date other than that prescribed in the statute of limitations. The later decisions of the courts have refused so to limit a shipper's rights and sustained the

97 Re Advances in Rates between Mississippi and Missouri Rivers, 21 I. C. C. 546.

98 Re Wool, Hides and Pelts, 25 I. C. C. 675, 678; National Wool Grow

ers Assn. v. Oregon S. L. R. Co., 23 I. C. C. 151.

99 For an exception to this practice, see Creomulsion Co. v. So. Ry. Co., 157 I. C. C. 95.

101

rule as given above.100 In the Sloss-Sheffield case, an order of the Interstate Commerce Commission-in fact, there were several orders growing out of the same proceeding granting reparation covering a period dating from two years prior to the filing of the complaint and extending down to the time revised rates were put into effect was attacked on numerous grounds, but the Commission's action in granting reparation with interest was upheld.

A reparation order based upon transactions antedating the establishment of a receivership of a carrier is not a preferred claim against the receiver.102

The Interstate Commerce Commission has held, following the decision in the Darnell-Taenzer case, supra that "to be entitled to recover [reparation], a party must have 'privity

100 The principle is settled by the courts: Southern Pac. Co. v. DarnellTaenzer Lumber Co., 245 U. S. 531, 62 L. Ed. 451, 38 Sup. Ct. 186. (For the history of this case see 13 I. C. C. 668, 190 Fed. 659, 221 Fed. 890, 137 C. C. A. 460, 229 Fed. 1022, 143 C. C. A. 663); N. Y. N. H. & H. R. Co. v. Ballou & Wright, 242 Fed. 862, 155 C. C. A. 450, P. U. R. 1918A, 149. See as illustrating the lack of a definite adherence to the rule stated in the text: Rules unreasonable but reparation denied: Hires Condensed Milk Co. v. P. R. Co., 38 I. C. C. 441 and cases cited 448; Scott v. Cape Charles R. Co., 38 I. C. C. 467; Brick from New Hampshire, 42 I. C. C. 231; Arlington Heights Fruit Exchange v. Sou. Pac. Co., 39 I. C. C. 88, 45 I. C. C. 248, 250; Coca-Cola Co. v. A. T. & S. F. Ry. Co., 45 I. C. C. 461. Reparation denied because general system of rates involved: Western Gro. Co. v. B. & O. R. Co., 40 I. C. C. 53 and cases cited p. 55; Alleged Unreasonable Rates on Live Stock, 41 I. C. C. 514 and cases cited; Cudahy Packing Co. v. A. T. & S. F. Ry. Co., 42 I. C. C. 579; Delaware, etc. Coal Co. v.

D. L. & W. R. Co., 46 I. C. C. 506 and cases cited. Reparation granted: Federal Glass Co. v. C. R. I. & P. Ry. Co., 38 I. C. C. 331; Fruit Dispatch Co. v. P. & R. Ry. Co., 48 I. C. C. 634; Cotton Mfrs. Assn. v. C. C. & O. Ry. Co., 53 I. C. C. 741. General statement of claim sufficient: Morgan's L. & T. R. & S. S. Co. v. Joseph Iron Co., 243 Fed. 149; Commercial Club of Omaha v. A. & S. Ry. Co., 41 I. C. C. 480, cases cited 482; But some certainty is required, A. T. & S. Ry. Co. v. Spiller, 246 Fed. 1, 158 C. C. A. 227, 249 Fed. 677; Montgomery v. C. B. & Q. R. Co., 228 Fed. 616. Injury to business: Louisville & N. R. Co. v. Ohio Valley Tie Co., 242 U. S. 288, 61 L. Ed. 305, 37 Sup. Ct. 120. No defense that shipper adds freight to selling price: Nitro Powder Co. v. W. S. R. Co., 44 I. C. C. 596, 597; Ballou & Wright Case, supra, this note.

101 L. & N. R. R. Co. v. Sloss-Sheffield Steel & Iron Co., 269 U. S. 217, 70 L. Ed. 242, 46 Sup. Ct. 73.

102 St. Louis & S. F. R. R. Co. v. Spiller, 274 U. S. 304, 71 L. Ed. 1060, 47 Sup. Ct. 635.

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