The contentions of counsel for the complainant, as we understand them, are these: (1) That the fixing of past damages is not legislative, but judicial, and is a proper subject for judicial action;

(2) That prior to the Transportation Act of 1920 the power of the Interstate Commerce Commission to fix divisions was limited to cases where it had previously fixed the joint through rate and where the carriers were in formal disagreement on the subject; (3) That the complainant could not invoke the action of either the Interstate Commerce Commission or the Minnesota Railroad and Warehouse Commission in behalf of the Minnesota Company;

(4) That neither the Interstate Commerce Commission nor the Minnesota Railroad and Warehouse Commission has power to fix divisions of intrastate joint rates.

1. Divisions of Interstate Joint Rates. Counsel in their brief have divided the period, so far as interstate joint rates are concerned, into two parts, namely, the period from December 23, 1917, to February 28, 1920, the date when the Transportation Act of 1920 went into force and effect, and the period from the latter date to December 22, 1923, the date when the bill was filed.

For the reasons hereinafter stated, we doubt that the extent of the power of the Interstate Commerce Commission prior to the Transportation Act of 1920 (41 Stat. 456) to fix divisions of joint interstate rates is material to a determination of this case.

Section 15 (6), Act of 1920 (section 8583 [6] U. S. Comp. St. 1923 Supp.), reads as follows:

"Whenever, after full hearing upon complaint or upon its own initiative, the Commission is of opinion that the divisions of joint rates, fares, or charges, applicable to the transportation of passengers or property, are or will be unjust, unreasonable, inequitable, or unduly preferential or prejudicial as between the carriers parties thereto (whether agreed upon by such carriers, or any of them, or otherwise established), the Commission shall by order prescribe the just, reasonable, and equitable divisions thereof to be received by the several carriers, and in cases where the joint rate, fare, or charge was established pursuant to a finding or order of the Commission and the divisions thereof are found by it to have been unjust, unreasonable, or inequitable, or unduly preferential or prejudicial, the Commission may also by order determine what (for the period subsequent to the filing of the complaint or petition or the

making of the order of investigation) would have been the just, reasonable, and equitable divisions thereof to be received by the several carriers, and require adjustment to be made in accordance therewith. In so prescribing and determining the divisions of joint rates, fares and charges, the Commission shall give due consideration, among other things, to the efficiency with which the carriers concerned are operated, the amount of revenue required to pay their respective operating expenses, taxes, and a fair return on their railway property held for and used in the service of transportation, and the importance to the public of the transportation services of such carriers; and also whether any particular participating carrier is an originating, intermediate, or delivering line, and any other fact or circumstance which would ordinarily, without regard to the mileage haul, entitle one carrier to a greater or less proportion than another carrier of the joint rate, fair or charge."

[8] It is clear that under this section the Interstate Commerce Commission, either upon complaint or upon its own initiative, has the power to enter into a hearing and to prescribe a just, reasonable and equitable division of joint rates. Counsel for complainant contend, however, as above stated, that under the provisions of this section the Commission may only prescribe just, reasonable, and equitable divisions for the future. The language of the act seems to limit an award for reparation to cases where the Commission has theretofore established the joint through rate, and to the period subsequent to the date of the filing of the complaint or the initiation of the investigation by the Commission, as the case may be. In the case of Pittsburgh & W. Va. Ry. Co. v. Pittsburgh & L. E. R. R. Co., 61 Interst. Com. Com'n R. 272, the Commission, after quoting paragraph 6 of section 15, supra, said:

"The provisions above quoted of the interstate commerce act leave no doubt as to our power to prescribe ‘just, reasonable, and equitable divisions' for the future or that the intent of the present law is to limit reparation (a) to cases 'where the joint rate, fare, or charge was established pursuant to a finding or order of the Commission' and (b) to the 'period subsequent to the filing of the complaint or petition or the making of the order of investigation.""

Since the joint rate in the instant case was not established pursuant to a finding or order of the Commission, it follows that the Commission has no authority under the Transportation Act of 1920 to award reparations to

[10] This is true because the question of just, reasonable, and equitable divisions for the future is a legislative question, which only the Commission may determine, and because the preliminary determination of that question is a prerequisite to the right to obtain judicial relief for past wrongs. It logically follows that, since the power of the Commission to determine this preliminary and fundamental question existed when the bill was filed, and when the matter came on for hearing before the trial court, the Minnesota Company should have first invoked the aid of the Commission to have such question determined and then sought judicial relief for damages resulting from unjust, unreasonable, and inequitable divisions in the past, in so far as such relief was not then barred by limitation or laches. We fail to see why this should be limited to the period subsequent to the date the Transportation Act of 1920 went into force and effect, and for that reason, as stated above, doubt the necessity of deterstated above, doubt the necessity of determining the powers of the Commission prior to the Transportation Act of 1920. [11] However, we have concluded, if it is material to go into that question, that the Minnesota Company might have invoked the jurisdiction of the Interstate Commerce Commission for the purpose of determining what was a just, reasonable, and equitable division of the joint rates involved prior to the Transportation Act of 1920.

Section 15 of the Act of February 4, 1887, as amended by the act of June 29, 1906, § 4, and Act of June 18, 1910, § 12 (section 8583, U. S. Comp. St. 1916), in part, provides:

"Whenever the carrier or carriers, in obedience to such order of the Commission or otherwise, in respect to joint rates, fares, or charges, shall fail to agree among themselves upon the apportionment or division thereof the Commission may, after hearing, make a supplemental order prescribing the just and reasonable proportion of such joint rate to be received by each carrier party thereto, which order shall take effect as a part of the original order."

"The Commission may also, after hearing, on a complaint or upon its own initiative without complaint, establish through routes and joint classifications, and may establish joint rates as the maximum to be charged and may prescribe the division of such rates as hereinbefore provided and the terms and conditions under which such through routes shall be operated, whenever the carriers themselves

It is the contention of counsel for the complainant that under these provisions the power of the Commission to fix divisions is limited to cases where the Commission has established the joint rate involved, and where the carriers have failed to agree among themselves upon the apportionment or division of such joint rates. If the sole power of the Commission to fix divisions was found in the language above quoted, we might be inclined to agree with counsel for complainant. We think, however, that jurisdiction to fix divisions under the circumstances existing in the instant case is found in other provisions of the Act to Regulate Commerce, and the amendments thereto.

Section 1 of the Act of February 4, 1887, as amended (section 8563, U. S. Comp. St. 1916), in part reads as follows:

"It shall be the duty of every carrier subject to the provisions of this act to establish through routes and just and reasonable rates applicable thereto, and to provide reasonable facilities for operating such through routes and to make reasonable rules and regulations with respect to the exchange, interchange, and return of cars used therein, and for the operation of such through routes, and providing for reasonable compensation to those entitled thereto." (Italics ours.)

Section 13 of the Act of February 4, 1887, as amended (section 8581, U. S. Comp. St. 1916), provides that any person or any common carrier complaining of anything done or omitted to be done by any common carrier subject to the provisions of the act, may apply to the Commission by petition, and provides that the Commission may enter into an investigation of the matters complained of.

Section 14 of the Act of February 4, 1887, as amended (section 8582, U. S. Comp. St. 1916), provides that the Commission after investigation shall make a report, together with its decision, order, or requirement in the premises.

In the Morgantown & Kingwood Divisions Case, 49 Interst. Com. Com'n R. 540, the Interstate Commerce Commission had before it the precise question now under consideration, under a state of facts not materially different from the facts alleged in this case. There, a small carrier owning a short line with but one trunk line connection had become dissatisfied with the divisions allowed it by its one trunk line connection, and sought the aid of the Commission to obtain relief

terest only to the participating carriers. They should therefore have an opportunity to negotiate and agree among themselves upon their divisions. And so the law provides that only in case of a disagreement may the Commission adjudicate their differences, doing so, for convenience and expedition, by a supplemental order in the same proceeding in which the joint rate has been fixed and without the necessity of a new complaint and a new proceeding. But it would indeed be a strained construction of the statute to hold that this special procedure for apportioning a joint rate, fixed by the Commission upon a shipper's complaint, has the effect of annulling another provision in the act giving a carrier a definite right to invoke the Commission's protection against oppression and injustice arising out of something done by another carrier 'in contravention of the provisions' of the act.

"The act in affirmative and specific language provides, as pointed out, 'reasonable compensation' to this complainant for its service in the through routes it operates with the defendant under their established joint rates; and for a denial to it by the defendant of such a reasonable apportionment the act, in the several provisions alluded to, affords the complainant a right, as we have seen, to have the matter complained of investigated by the Commission; a remedy, which in our judgment is also legislatively recognized by the incorporation of the words 'or otherwise' in section 15, as hereinbefore explained. Not only is a remedy provided in the act against an unreasonable demand, in the apportionment of a joint rate established under the Commission's order, but in voluntarily opening through routes and making joint rates applicable over them 'those entitled thereto,' namely, a participating line like this complainant, may insist that 'reasonable compensation' shall be paid to it out of the joint rates. It is not only our order that must be obeyed but the statute also must be obeyed.

"This construction of the act gives effect to all its provisions. Speaking for the court in Texas & Pacific Ry. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 442, 443 [27 S. Ct. 350, 51 L. Ed. 553, 9 Ann. Cas. 1075], the present Chief Justice pointed out that every provision must be 'read in connection with the context of the act' and that if 'the general terms of the section when taken alone might sanction' a conclusion destructive of certain rights conferred in other parts of the act, the context must be considered and the general terms be so construed as to give full

effect to the entire act. The act cannot be held to destroy itself.' That principle is controlling here. The right of one carrier, conferred in the sections mentioned, to complain of another carrier, because of a denial to it by the latter, in contravention of the act, of 'reasonable compensation' out of their joint rates, may not be destroyed by a technical construction of certain terms in the provisions of section 15 relating to proceedings in which the Commission is asked to establish through routes and joint rates under its order. The two rights must stand together and be administered by the Commission, when called upon, in such a way as to compel carriers, in every contingency where the act opens a way, to obey the substantive law of the act."

The Commission reaffirmed this decision in Pittsburgh & West Va. Ry. Co. v. Pittsburgh & L. E. R. Co., supra, and in Western Pacific R. R. Co. v. Southern Pacific Co., 55 I. C. C. 71, at pages 73, 74.

We agree with the reasoning and the conclusion of the Commission in the opinion last above quoted. We think it was the intent of Congress to provide relief to a small carrier from an unjust division imposed upon it because of the domination of a larger carrier with which it connected. [12] Counsel for complainant contend, however, that even if the Minnesota Company could invoke the aid of the Commission either under the Act to Regulate Commerce, as amended, or the Transportation Act of 1920, that its minority stockholders were powerless to do so, and therefore their sole relief was in a court of equity. They cite, in support of this contention, Manning v. Chicago & Alton R. R. Co., 13 I. C. C. 125. It is true in that case the petition was filed by a stockholder of the Louisiana & Missouri Railroad Company, and that the Commission dismissed the petition. It dismissed it, however, not because of want of a proper party complainant, but because the complaint alleged no violation of the Act to Regulate Commerce. At page 127 of the report the Commission said:

"Without reciting the various matters of which complaint may be made as provided in this section, it is clear that the facts alleged in the petition in this case and above stated do not disclose the violation of any provision of the regulating statute. Whatever may be the equities of complainant as a minority stockholder of the old Missouri Company, he fails to show that anything has been done by defendants which the act prohibits or anything omitted which the act enjoins. In other words, nothing is alleged or