Mitchell Coal & Coke Co. v. Pennsylvania Railroad

COAL CO. v. PENNA. R. MITCHELL R. CO. .Syllafaps. 230 U. is, published

rates” —that rates —as unlawful for the establishing of injuria, but insists that purpose must be treated as lawful when we come ascertain the damnum. sine damno. Injuria is, paradox:

The legal result but plaintiff wronged, sue, The not harmed; may may not recover.

If' rate differential is not element of a dam- proper brought courts, in the it will ages suppose actions I for the to it. be Commission to adhere Yet the proper adopting any sheer other measure impossibility dam- reparation in the multitude ages, eases Com- is perfectly has to deal with, mission obvious. result, whole, private is a denial virtual

remedy for the most common harmful of dis- those criminations that the Interstate Commerce Act was de- prevent to redress. signed COAL AND COKE COMPANY MITCHELL COMPANY. RAILROAD PENNSYLVANIA THE UNITED TO THE DISTRICT COURT OF STATES ERROR OF PENNSYLVANIA. FOR THE DISTRICT EASTERN 9, June 1913. 1912. —Decided No. 674. Submitted December Co., ante, p. fol- Pennsylvania Railroad Co. Coal v. International of a jurisdiction brought case courts effect lowed to damages actually sus- against a carrier for the amount shipper a carrying full tariff when charging him it was by him for tained shippers rates for other at lower goods the same distance the same by proof damages the amount must sustained as to such but that thereof. jurisdiction brought by shipper against suit a have not The courts damages similar paying shippers reason other TERM, 1912..

Opinion Court. of'the U. goods amount services connection with unreasonable finding by has been a and until there transportation, unless the In- payments that Commission the so terstate Commerce made to the unreasonably shippers large. other right Regulate A under the Act the pay has Commerce to for in shippers a reasonable' allowance services connection with transportation goods shipped them, and paid of the allowance prima courts as must'be treated reasonable until b3r facie Commerce Commission has determined otherwise. Interstate question jurisdiction only, When case is here on'a this court pass upon questions go which cannot to the merits. recognized by necessity, Act Regulate There a Com questions merce, as to having reasonableness of rates and allow bjr in single a tribunal order to the conflicting ances settled avoid de if pass several tribunals cisions which would result different could question; and designated the act itself has same the Inter as that state tribunal. Commerce may lawfully paid, bo tiny Allowances for lateral hauling become only unreasonable; unlawful when whether past unreasonable either rate-making question future is over which the courts no jurisdiction, parties attempt even if the give it'by consent. action, having any. been commenced application having This without to the Interstate made Commerce Commission to declare un- paid by reasonable allowances hauling, carrier for lateral dismissal, stayed must be remanded case but the dismissal is give plaintiff opportunity make application with the to the carrier to heard on defense of limitations as aswell other defenses. 475, Rep. part 192 Fed. in affirmed in part. reversed

The facts are stated the opinion. for plaintiff George

Mr. S. Graham in error. Mr. John G. Johnson Mr. Francis I. Gowen for de- fendant in error.

Mr. Justice Lamar delivered the opinion of the court. On 20, 1905, November the Mitchell Coal and Coke Company brought suit the Circuit Court the United States for the Eastern Pennsylvania District against

. v. PENNA. R. R. CO. MITCHELL COAL CO. Opinion Court. TT.-S. for- to have damages alleged Railroad the Pennsylvania Altoona, rebates to payment 'been occasioned Companies. Glen Latrobe and Bolivar "White, Millwood, April between complaint alleged The competition,with these com- May 1, 1901, plaintiff, panies, Pennsyl- coal and coke over the shipments made gen- vania Clearfield to the same road District time, that, in other all that during eral markets States companies, pretending to these paid the carrier rebates money was an allowance trans- given them over portation by them, hauling rendered cars services their mines and the railroad station. spur between tracks ease should be sub- parties stipulated powers who have the Referee, mitted to a should plaintiff. favor of the were in special findings master. His damages, of was as to the report, His modified measure judgment but before (181 Rep. 403), Fed. confirmed the case moved to dismiss entered thereon the carrier jurisdiction had no a court, the court, because Federal Commerce of of until Interstate the cause action after the had of the allow- legality passed 'upon the paid ship- of amount ances and the reasonableness and pers liauling cars mines the'station. between their Rep. 908), and the granted The motion was Fed. (183 Court of by case was taken writ of error to Circuit 475) Fed. (192 Rep. Appeals, which dismissed the case could be reviewed only ground question A of United of Court States. writ by Supreme (223 733), and the plaintiff denied U. S. certiorari was brought error, of thereupon by case here direct writ certifying the as the "judge following jurisdictional (cid:127) question: Court United in advance States,

“Has Circuit of the Commis- any application to'the Interstate Commerce body, jurisdiction sion to en- action thereon trespass brought tertain an a of coal shipper action of TERM; 1912.

Opinion of the Court. U. S. damages coke to recover of alleged because unlawful preferential competing ship- rates accorded other and pers of coke, alleged coal and rates preferential when such are such claimed to have resulted from payments-made'to other shippers, payments plaintiff claimed were rebates and filed published and the freight rate, compensation defendant claimed made as for serv- were shippers ices or for rendered other accounts which justified making same, it in when it ap- further had peared pursuant payments that such made to a practice long standing, and that a number of shippers plaintiff other 'than the interested question the lawfulness thereof.” plaintiff’s damages The cau.se action occasioned payment illegal unreasonable allowances was

one under 9 of the which, (24 Commerce Act §§ only brought Stat. could 382), District Circuit Court the United States. The motion chal to dismiss court, lenged jurisdiction as Federal court, and. “primarily to hear power complaints concerning wrongs one of.” complained the character here Texas Co., Abilene 204 U. S. Ry. &c. Co. v. B. & O. R. 442; Co., Coal R. v. Pitcairn 215 U. 481, 495; S. Robinson B. & 222 U. S. 506. The order O., of dismissal was of jurisdiction, founded denial on the this court has Ira ruling. M. power Hedges, to review that S. 218 U. Steamship Jefferson, 270; 215 U. 130. The from Darnell Illinois R., case differs R. 225 U. S. 243. had found There the Commission that un the rate was demurrer, on reasonable. The based allege the failure to had a been reparation that order made in favor of the jurisdiction the did not plaintiff, attack court, the as cause of court, a Federal the action sought since en to be if properly was one which, brought could, forced under (36 Stat. 18, 539, the-act of June 554, c. 309), have in a state or been maintained either Federal court. v. PENNA. R. R. CO. MITCHELL COAL CO. 230U.S. Opinion of the Court. dismiss for want

2. In casé motion to present end of trial and was jurisdiction made was at the evidence. It pleadings, upon based, a statement of the make necessary, therefore, becomes the Mitchell plaintiff, issue: —The facts material owned, in the mines Coal six coal Company, and Coke 1901, 1, and District, May Clearfield and between 1897 in Railroad shipped products Pennsylvania over the time the During that state and interstate commerce. violated provisions of Act were constantly the Commerce gave the carrier many there instances which were full it collected the shippers secret rates to from whom between tariff refunded difference subsequently were illegal such rebates legal Many and the rate. which this paid plaintiff, Company, to-the Mitchell dif- damages, recover, as case claimed the paid to it what ference between these rebates to the Altoona paid were additional rebates claimed déclaration. mentioned companies and other cent, of for a that, time, per of the part found Referee rates, had been made at secret shipments plaintiff’s Rep. 173 Fed. Co., R. v. International Pa. R. citing held, plaintiff as much tonnage, this that, no the carrier and as was violator the statute illegal of this contract would be out arising cause of action therefore limited inquiry He enforced the courts. damages respect part to that of the to a consideration no on rebates had shipments plaintiff’s paid. report, testimony

From the Referee’s returned name District Clearfield is the therewith, appears reached the lines coal field given large many district In this there Railroad. Pennsylvania railroad and others at considerable near mines —some therefrom, reached lateral lines but all distances from the were carried to and tracks, over which cars spur TERM, Opinion of the Court. 230 U. S. This Clearfield District was a single mines. treated as station, and the rates from all shipping points therein were transported the same where coal was to the same point published beyond the State. tariff named the rate from destination, station to but was construed uniformly include the haul the mine. The published rate shipments was so on applied all made the plaintiff as well those made as .on the Altoona and other com- panies complaint. named in the appeared further that to

It these companies the carrier trackage is called a paid what or lateral allowance, claim- it was ing compensation allowed for hauling them cars from their mines the station. The defendant’s con- that there was no tention concealment of payments these' plaintiff, is controverted which insists that it had knowledge no until payments when 189S, officers were informed the railway was paying some companies 10 cents ton such services. The Mitchell plaintiff, thereupon Company, bought engine purpose used for that at its Gallitzin mine and with this engine cars, hauled loaded and empty, between that mine For and the station. this work it demanded pay defendant should the same lateral allowance other, paid railroad cents a ton that companies similar services. The carrier contended that it was itself do at the prepared switching mine, Gallitzin though, dissimilarity on account conditions, it could not economically do so at the Altoona other mines referred . complaint. It therefore declined to pay lateral allowance to plaintiff, offered to continue to treat haul as this included in the rate and to do that work with- charge out extra Mitchell Company. The plaintiff hauling then offered do the for less 'than 10 cents, exact amount appearing. The proposition having declined in 1899, plaintiff, on November suit, offering this brought evidence to show that in.some PENNA. R. CO. R. CO. COAL MITCHELL Opinion of the Court. 230 U. high as as 18 allowance was cents a ton instead

cases the understood. cents, of 10 had previously mine, In the plaintiff to the owned addition Gallitzin were They in the Clearfield District. located five others from railroad and 3,000 from feet points 1,100 at plaintiff, to the by belonging tracks spur were reached belonging over which hauled the locomotives cars were For this service the carrier Pennsylvania to the Railroad. treating rate, it as included charge, made no extra rate as from station- though published the tariff destination. Altoona, White and Millwood- Glen

The mines District, located the Clearfield while Companies were Companies Latrobe and were-near those of Bolivar District, Latrobe narrow, track, gauge The Millwood was reached aby hauled that coal company’s over which cars were engines. paid For that work was doing narrow gauge April, 1899, a lateral 15 cents a ton until allowance after 10 a ton. that date cents was three White mine about miles Glen having light reached-by spur rails,

main road and was steep sharp curves, over evidence grades railroad could engines of the not tended to show that the company This trans- economically operated. safely engine doing cars with own ported coal allowance defendant it a lateral 15 paid that work the 1901 28, On (subsequent cents a ton. December this,litigation), gave the carrier involved transactions coke, on notice it would discontinue lateral allowances on ton coal. per would allow 15 cents spur aby track., was reached over The Altoona mine Altoona hauled which, engines, Company own with its on lateral 13 coal cars and was allowance cents paid on on points cents Hollidaysburg and 10 coke tQ coal on Branch, and on cents 18 .cents coke TERM, Opinion of the Court. 230 XLS. east of Altoona. On December lateral points 28,1901, this on was on allowance coal discontinued coke re- On a ton. January duced to cents all lateral discontinued. allowances were payments Inasmuch as- the Altoona larger were company, plaintiff than those to other coal claimed which, measure legal damages were was di- therefore-specially to be assessed. The evidence this mine, at which was rected situation a little air line from over in'an the railroad and eight three miles hundred feet above the station grade was, level. The only steep, necessary but it very make use. in to three switchbacks order reach the elevation of the lengthened mine. The line was thus so as to be about 5 in on length. miles The curves this track were very sharp; and light,, only specially the rails were constructed engines There could be used. was evidence that before the Pennsylvania’s locomotives could have been operated necessary over this would have been spur in put the,culverts heavy rails, strengthen realign and track. grade only four could Owing steep cars be hauled at a from three to times as time, required six to do long of work as transportation same amount at the Gallit- zin mine.

3. The facts plaintiff insists that these demonstrate payments that the Altoona and other companies value of or locomotive, were measured the track byor of the cost the service but rendered, were unreason- in amount, arbitrarily able fixed, lowered or with- drawn constituted mere cover rebating. On the insisted hand, though other the defendant that, bound to the cars to and from the mines,-it haul could not econom- do of ically the work on account the physical conditions at Altoona, Millwood and Glen White mines and that it, therefore, employed companies perform those service, paying transportation them an therefor allowance COAL’CO. v. PENH A. R. R. CO. MITCHELL Opinion 230 U. S. of the Court.

(cid:127) which prima reasonable must be so treated fade by courts until the has determined that it was an unjust constituted discrimination'. excessive

On this hearing, involving matter jurisdiction, we cannot pass upon go these questions merits controversy But these claims the parties em- phasize the fact there two are classes acts which may basis of a suit for Ixi damages. one form.the legal practice complained quality may not be definitely fixed so that allowance, other- statute wise is lawful or permissible, unlawful, according as it is But reasonable unreasonable. to determine ques- tion and comparison involves a consideration of many various and calls facts exercise the discretion tribunal. The courts rate-regulating have not been given fix rates or practices direct pro- jurisdiction nor do ceedings, collaterally can so during the prog- ress a lawsuit when action is based on the claim that unreasonable If paid. the deci- allowances sion of such cpmmitted to different questions; courts with different juries vary results would not only de- gree, might often opposite character —to the de- struction of the uniformity practice rate which was object cardinal of the statute.

4. The necessity under having statute of such by a in questions single settled tribunal order secure singleness practice and uniformity rate has been pointed out and settled Abilene, Pitcairn and Robinson Cases and referred to here this record because and that in Pennsylvania R. R. v. International Co., ante, re-, furnish p. just decided, illustration striking suits which Would follow if the allow reasonableness of an ance could be decided different tribunals. Both eases involve the payment a ton to cents the Altoona Com pany during period the same and for identically the same plaintiff that insisted the payment reasons. In.both TERM,.

Opinion 230,TJ; of the Court. that rebate, and the carrier was compensation was a In the International rendered. Case the judge services Altoona allowance'as lawful and treated the reasonable. found that it Referee was a rebate, In this case the while on judge, passing exceptions trial the report, fact about that it was which question held evi-. conflicting thereupon approved was dencé Refer- it as a Treating question fact, report. may- ee’s there testimony sufficient sustain the-finding have been conclusion although the was instances, diametrically both the rule that And, applying appellate courts opposite. findings of fact not disturb the evidence is will where have, contradictory judgments might conflicting, one could have been plaintiff affirmed and .awarded theory on the Altoona damages allowance was bean, other in cost and the mulcted unlawful because the legal. was This and like considerations Altoona allowance that, holding as the courts have no primary compelled rates, fix neither can do so at jurisdiction who claims to single of a have been plaintiff damaged' suit ipai an allowance was unreason- competitors because in amount. able ignores this conclusion argued

It §§ t!,:., shipper option give suing the courts argument to the Commission. same applying and answered in the Case showing was made Abilene suits based on that a charge permit particular without unreasonable, previous action practice repeal many Commission, provisions would n uniformity and -For, mani- requiring equality. statute uniformity cannot equality be secured festly, separate before tribunals separate involving suits of a rate or practice. might reasonableness The evidence vary and, course, the verdicts would with' vary, result that one would succeed one shipper jury before fail another before a different where the jury, reason- CO. v. PENNA.

MITCHELL COAL II. CO. R. ' Opinion 230 U. S. of the Court. ' practice

ableness of the same was involved. Manifestly, different verdicts would occasion between the inequality two and it is if shippers manifest that the Com equally mission had order made one of which both could avail there would been themselves, finding, one of'which one, shippers two or a score of could avail equally them n selves. claim that conclusion nullifies this. answered the fact that concretely by, just the court'has decided to Inter contrary Pennsylvania R. R. v. national Company. Coal There-the carrier insisted a suit damages, rebating, occasioned could not maintained action the Com preliminary without overruled, mission. This contention was and it held that, in prohibited by an act doing statute, jured previous sue the earner without party might action Commission, because the courts could apply departure law the tariff to facts prohibiting But suit is based upon case. where the unreason is no charges practices able or unreasonable there law ip and therefore fixing prohibited. what unreasonable In of the statute shows that scope such cases the whole not the the Commission and courts was intended that When question. should that administrative pass upon par for that though it is as the law such order is made then had and the courts could fixed, practice ticular — n case, order, case, every not to one apply every shipper' rights thereby giving equal preserving gives plaintiff Section 9 practice. uniformity tfie courts for the Commission option of before going But of the statute. by a violation damages occasioned de charged duty with the since the Commission unreasonable practice was so termining whether a con law, plaintiff must, ap be a violation from the an order succeed, produce dition to his was thus or the rate practice Commission that un :md therefore prohibited, illegal reasonable' cexxx —17 von. TERM,

258 Opinion of the Court. '230 U. S. the. Abilene, 5. It that under argued Robinson and this may be true as to existing Cases rates in Pitcairn public it is interest, which the have urged that a past claim based the unreasonableness rates practices and raises a. judicial discontinued question, have, courts and riot which the the Commission juris- diction. answers, to this proposition.

There are several In the first place, plaintiff cannot claim under the act and against it say least, it. To is .'extremely doubtful one whether, law, at common had a shipper cause of action paid because the carrier another shipper' more than of'transportation the market value services rendered B. R., I. C. C. & R. 145 carrier. v. O. U. 263, S. 275. But if such' right existed was abrogated or Act,-and given one which, forbidden the Commerce was as a condition of the right recover, a required finding by the that the allowance unreasonable: qr and an unjust as discrimination operated as an undue Texas preference. Ry. Mill, &c. v. Cisco Oil 204 U. S. &c. v. 449; Ry. Texas Abilene Co. U. S. 204, 426, 444; Ry. Tift, 428, 437; Southern 206 U. S. States v. United R., & Arctic R. U. orders, 228 S. 87. Such so far as Pacific they conclusive, they are are whether administrative relate can past rates, given general be and uni present form all who shippers, since operation, may rate, can take advantage ruling affected avail themselves order. reparation They are quasi-judicial and only prima correct in so far as facie fact they and amount of damage determine to—as óf which, payment money since involves the and taking given carrier is act property, day § judicial hearing (March court 2, 1889,-25 382). Stat. c.

In considering the administrative questions' reasonableness, the elements are problem i>. MITCHELL COAL CO. PENNA. R. R. CO. Opinion U. the Court. same, whether involve the validity of obsolete allowances, tariffs, discarded or current rates practices. In classes of cases there is a call for the exercise of both rate-regulating the same discretion necessity the matter settled having single tribunal. For if at suit a court shipper, of one could hold a rate past or allowance to .have been unreasonable and award dam- ages accordingly, it manifest that such would shipper secure a but undue preference belated over others who had not could not avail sued and themselves of the verdict. But than more this —to permit separate suits and separate only would not findings destroy the equality which the statute should be intended permament, even after the rates had but it changed, been would bring about direct - conflict in the administration the law. Under the statute primary carrier has to fix rates, and so long as by are they the Commission the acquiesced carrier and are alike bound to shippers treat them as lawful. After rate had’ been abandoned the carrier is still obliged it as having lawful, treat and cannot refund what had been under it collected until the Commission de- was apparently what reasonable had in termines fact But 'been unreasonable. such a determination cannot be for by courts, they made would not only have first an administrative function and exercise a make rate which to measure the reasonableness of charge would collected, go further and treat rate, past unreasonable which the present, statute' had should be declared deemed until it lawful had been held be otherwise the Commission.

As t*o present past practices for allowances, Commission has the same power and there is the same to take necessity preliminary action. This recog Ry. &c. 426, nized Texas v. Abilene Co., where, 204 S.U. considering 22, relating after 8 and jurisdiction §§ "statutory and common remedy, law it was said that TERM, 1912. ‘260 U. S. Opinion of the Court. ór in might voluntarily rates alter its although a railroad it can Commission, yet to an order of obedience would power of the Commission be doubted “not complaints of and hearing legal extend nevertheless unlawfully wrongs to-individuals awarding reparation of the unreasonable schedule application from suffered in force.” when such schedule was during period useful, time-saving, a- ruling upset would contrary A For in practice. accordance and established economical after, Commission, the act the with this construction rate, repeatedly of a has received the abandonment un- and, that-it upon finding had been complaints heard ’ See granted^ accordingly. reparation has reasonable, C., Ry. Co., M. St. P. & 16 I. C. C. Fuel v. Arkansas Co. P. Ry. Co., M. & St. C., Co. I. C. Allen & 95, 98; C. insists, however, that are all'these reasons plaintiff States, Wight v. United

answered the decision court, action preliminary where without U. Commission, consignee allowance paid held hauling freight wagons depot his to warehouse thereupon inflicted the statutory punish- a rebate ment. any did not question

But that case involve reason- Nor was the there ableness of rate allowance. court indirectly rate-regulating power, called on to exercise whether, as to only but of fact pass upon ..question a charged indictment, as in the defendant had paid that to a-favored It eonsignée. appeared secret rebate the haul rate of 15 cents included published carrier’s yard Pittsburg. by Neither Cincinnati include terms, general practice, nor that rate did city at from the delivery warehouses the. and distant to furnish free having tranks. railroad Not undertaken that cartage, perform it was unlawful for the carrier to not for patron Paying for one others. service all CO, R, CO, R. MITCHELL COAL v. TENNA. 261 Opinion of the Court. 230 S.U. a rendering service the consignee carrier was

favored furnish, gift was a thing not bound rebate —a ipso —a illegal statute and for prohibited by which the facto indictment, carrier was to criminal and for subject guilty on the civil damages could have been awarded necessary court. It was therefore not to have side of the because ruling the Commission the statute preliminary of rebates and the courts payment itself prohibited accordingly. could the law apply plaintiff thereupon insists that even on this 6. The view be judgment reversed, claiming the case the should character, here were of that payments prohibited that- amount, if the so even allowance was reasonable (a) given its. was nevertheless unlawful because payment (b) not mentioned for a not included the rate and service in the tariff. 847, February 19, 1903, the Elkins Act of 32 Stat.

Under A. 148 Fed. Ry., Rep. c. States v. & (United Chicago 708 558, court, Fed. Rep. 156 affirmed divided 646; C., 563), Hepburn 29, 212 and under the Act of June S.U. 584, (Victor c. Co. Atchison Ry., Stat. 14. 120) I. held must give C. has been C. of free cartage, lighterage, ferriage, notice in the tariff furnished, will be other- accessorial service any will be made to well allowance that any shippers as' or service. But the transportation facilities who furnish statutes, not to governed by those present case when of force between 1897 by the law place. of took At that time complained transactions notice of give the carrier to required Commerce Act1 printed as aforesaid . . . The schedules Sec. between its railroad plainly state the places carrier shall common carried, and shall contain passengers will be property and which sep , . . state . and shall also freight in force classification of which in any regulations charges or and rules arately the terminal TERM, (ho

Opinion of S.U. Court. against it would make But the every charge shipper. compel publish statute was not construed railroad cartage or accessorial furnish what free service it would States, (Detroit 646), v. United 167 U. nor what sums transportation for service rendered pay shippers would could, Failure to publish them to the carrier. these items easily unjust discrimination, lead and the however, court, cited, in the case last held that Commission might, by general order, pub such matters to be require lished in the rate sheet. cited to such order any We are we period and, now under so far as investigation, discover, car general can of all public custom riers, Commission, in- at that acquiesced the tariffs uniformly any time omitted statement of allowances paid shipper cars, would be to the for the private use of or tracks, or for private transportation service in switch ing, hauling, lightering work, or other in the included rate, actually performed shipper.

But although the statute then of force not con- allowances, the publication pay- strued their require anywise change, affect, any part aggregate or determine or the of such charges. aforesaid rates and ... fares any And when such common carrier shall have established and published rates, fares, charges compliance provisions with the section, charge, of this it shall be unlawful for such common carrier to demand, collect, any person persons greater or receive from or or less compensation transportation passengers property, for the or for any therewith, specified published services connection than is in such rates, fares, charges may schedule of at the time inbe force. Every subject provisions common carrier of this act shall file provided with copies the Commission hereinafter of its schedules of rates, fares, charges which published have been established and compliance requirements section, with the promptly this and shall notify changes Every said Commission of all made in the same. common carrier shall also file with copies said all con- tracta, agreements, arrangements with other common carriers in by'the relation to traffic provisions affected this act to may party.”' (Act February 4, 1887, be a 381.) Stat. COAL R. R. MITCHELL CO. PENNA. CO. 263 Opinion of the- Court. S.U. only when supported by ment was lawful a consideration. for shippers To their own -work pay doing would gratuity, a mere and if the was here not bound to from mine no pay haul the it had more these bringing for their companies spur coal track to the oyer the for junction than it have had to a pay would merchant hauling his a goods wagon depot. the railroad that such is plaintiff here, that, insists the case the rate from station, tariff named the law- pot could haul from fully mine, include the and- consequently paying doing their a shippers hauling own was rebate. mere , undoubtedly

Such if would have been naming from rate station destination meant that the haul had the depot at begin building. But neither the statute tariff nor the defines limits, they what are station nor do fix the exact from point transportation which the must territory nor the begin, within which the delivery must These limits necessarily vary be made. with the size communities, of the yards, extent the practice carrier and the of the bounds within it uniformly which and delivers freight. receives This is true particularly case like the present, where the Clearfield District single as a shipping point, rate, was treated and where the though published named and as from station, universally from applied the mines of the Mitchell Com- as well as the pany companies other named in the and all declaration others located in Dis- the Clearfield trict.

Inasmuch as this rate included haul the Railroad transport was bound the coal mouth of mines, engines and could use its purpose own for that employ Companies or it could Coal render that service, them paying compensation In proper therefor. any question arose case as to reasonableness the limits within rates should practice, station 26-1 TERM, .

Opinion of the Court. U. S'. reasonableness those apply, paid the allowance shippers supplied who motive power, the Commission no alone could act. For courts arc authorized more n - to determine the reasonableness of an allowance for. a track, haul spur station, over a between mine and than are to reasonableness of a pass rate line, haul, trunk station over a and'station. What between is is not a proper or was a allowance matter of law until body. after has been fixed rate-regulating it what apply law, and, measuring courts can then has what should charged by been the Commission declares charged, can award damages the extent injuries payment occasioned of the allowance found to have "been unreasonable unlawful. applied

That station rates be from may mill mine is by spur-tracks recognized by ruling reáchéd in the Line 23 I. Tap Cases, 277, where, C. C. with the dealing practice paying an ^allowance hauling sawmills, lumber the Commission said (p. 293): all it trunk

“In cases is apparently practice is car lines, made, empty where no allowance set "the at the mill and receive the loaded car at the same point. do this in even when Indeed, many cases is But this tap allowance made to the line." whenever service is the trunk it is included in performed by line, the lumber rate and is additional charge. done without In some the switch or track spur connecting instances mill with the trunk is as much as three In long. line miles common words, by practice other their carriers public as interpret the lumber rate mills this applying from as territpry apparently three miles from their own. far ;manufactured far lines.. So as the is concerned, lumber it said a may physical therefore that where mill a be. has connection with a trunk line and is not than more three distant, the offered the trunk transportation miles line MITCHELL COAL CO. PENNA. R. R. CO. . Opinion S.U. the Court. If, therefore,

commences at the mill. a company, lumber having mill within that of a trunk line, distance under- takes, by arrangement with the trunk to use its own line, power to set the car at mill and to empty deliver when loaded to doing the trunk.line for itself what the trunk line, under its to do under the tariffs, offers rate. In such case the lumber therefore company may fairly be said to facility furnish a transportation which it may reasonably compensated under section whether its tap line is incorporated unincorporated. In words, the company lumber thus does for itself other what trunk line does with its own at other power mills without additional charge and what it must there- without, do fore for the particular company lumber aclditional think Under we charge. circumstances under, the lumber section have reason- company, 15, may able compensation when it the trunk liné of relieves the. duty. But an allowance under such circumstances lawful only when the trunk line for reasons prefers, its own and discrimination, without to have the lumber company perform lawful when the service. It is not the lumber to trunk line company permit refuses to do the work.” I.23 C. Rep. C. 277. ruling

In view this it is that allow- apparent lateral might ances have been unlaw- lawfully They became paid. ful not only when they unreasonable. Whether were so was a di- rate-making question parties' as to which were at and rectly issue, which courts had no jurisdiction to determine so far as it to concerned the allowances no Altoona, Having Millwood and Glen mines. White .it to jurisdiction, give consent parties by could if, And court, judge, to the to as nor the Referee. claimed, stipulation to the case to the submit Referee of thé estops the defendant from on insisting plea issues, of limitations, statute all relevant that, with other that can then be if decides determined, the Commission TERM, Opinion of the Court. S.U. unlawful, was and the allowance carrier has no other defense. situation the Bolivar and Latrobe

7. But the Com- different -from at very Altoona, was panies and mines, and Millwood a different con- Glen White therefore, follow. The Latrobe’ and Bolivar must, clusion District, were located the Latrobe mines Companies’ to about 20 cents points the rates were where eastern that for District, except than from the Clearfield higher part same, though ship- of the time then small with those comparison ments were During District. period plaintiff the Clearfield in. with the and Bolivar (cid:127)shipped competition Latrobe owned no Companies. companies engines, These no cars and station. That' they hauled between mine rate, Pennsylvania work was included and the did with its own- hauling crews. there- locomotives It nothing Companies fore owed the Latrobe and Bolivar the service the carrier itself performed, fbr. allowance, regardless amount, the so-called n forbidden the statute gift a'-rebate, absolutely mere — illegal. Being prohibited law, an act ipso facto n necessary any preliminary was not decision could, but the Commission, effect courts case, as in other apply proven the law the facts injured. award The decision damages person in International just Company Pennsyl- rendered Coal Railroad to discuss unnecessary vania makes further court this branch of the case. For the had undoubtedly with this branch of jurisdiction proceed the case. therefore, must judgment, reversed so far be. is based upon payments the action the Latrobe and Bolivar and affirmed in so far as based Companies, Mill- upon payments Altoona, Glen White and But to Companies. owing peculiar. wood facts case, this the unsettled state of the law at the time The COAL v. A. MITCHELL CO. PENN R. R. CO. 267 n Pitney, J., dissenting. 230 U. and to begun

suit was the failure of the defendant make jurisdictional in limine so that point plaintiff could then have its claim to the presented an order as to obtained the reasonableness practice allowance, given the dis- —direction stayed give missal so as to plaintiff be reasonable within opportunity apply the Commission ruling practice as the reasonableness of the and. if in involved; and, the allowance favor plaintiff, with the trial proceed with the in the cause the District in Court, which the defendant shall have the

right to be heard on its plea of the statute of limitations of the time the suit was filed and other defense which it may have. in and in part, part reversed.

Affirmed 'modified Mi. dissenting in this Justice case and also in Morrisdale Company Pennsylvania Coal Railroad Company, post, p. 304.

Since the result reached by the court these has cases the effect of option virtually eliminating conferred 9 of the Interstate ag- Commerce Act shippers § grieved by unjust practiced by common discriminations carriers in violation of 2 and 3—the option “either §§ complaint make to the Commission” or to “bring suit for the recovery damages” . conferring upon of—and least, carrier, some cases at the choice of two lines of procedure, by selecting the of the defense to character be and since in this respects ag- other interposed; grieved measure,. are to shippers deprived, very large of the right redress action at conferred private law ' 9 for my violations of I deem it §§ §§ duty my at express, length, grounds somewhat dissent.. (No. case of the Mitchell Coal and Company Coke TERM, 1912.

268 230 U. S. dissenting. J., a viola- whether for 674) presents question the action Act, ground 2 based the of upon a discrim- tion of of the § of secret to com- iñeans rebates accomplished ination the the where defense is that plaintiff, of the petitors name of or lateral (under “trackage the paid rebates were compensation services rendered allowances”), as carrier, the be with- of can maintained aid shipper Commerce Com- the Interstate application out a prior body to whether by that mission and a-determination or reason- “trackage lateral allowances” were alleged in the This proper. years able and case arose 1897 in 1905. was 1901. The action commenced 207) Morrisdale (No. The case of the Coal Company whether can question an action be maintained raises respect 3 unfair discrim- for violation of Act* § distribution, previous ination car without action the reasonableness of upon question complaining accorded carrier the treatment method car distribution shipper, propriety during of action pursued. that was cause accrued years inclusive. Suit commenced 1902 1908. - in the negative, upon These are answered questions Oil & v. Cotton authority Ry. Texas Co. Abilene Pacific Co., U. v. Co., 204 Balt. & Ohio R. Co. 426; S. Pitcairn Coal Co., S. v. Balt. R. 481, 495; 215 U. Robinson & Ohio S. authority 222 I do at question U. all cases, grounds propriety these or the of the seems, they were But to me the Pitcairn decided. Case, as well as.the case Interstate CommerceCommission Co., v. Illinois R. Central U. S. has no direct bear ing'upon presented; now the au questions thority of the Abilene Cotton Oil Co. case of Case Robinson v. Co., reasoning & Ohio R. and the Balt. court therein, are reached directly opposed result present in the cases. CO.

MITCHELL COAL PENNA. 1L ÍC CO. Pitney; J., Ü. The Abilene Case held that a who observed published schedules of rates without established pref- erence discrimination could not held liable to an alleged at law to action recover excessive charges freights charged when the prescribed those by the 22 and schedule; although of the Act declared that § “nothing in this act contained in any shall abridge w“af or alter the remedies existing now at common or by law statute, provisions but the of this are in act addition to remedies,” saving clause must necessarily this limited as to so exclude action upon based common-law when such action principles, would run counter the very prescribed means by the same Act for producing § and uniformity preventing discriminations. in the

And held, Robinson Case upon like rea- soning, that a differential in rate between coal loaded into cars from wagons and coal loaded tipple, from embodied the schedules, in published could not be filed discriminatory unjustly deemed in an action at law, be- any cause the Act forbade deviation from such published effect; in schedules remained while In the both those cases carriers strictly had observed the tariffs, and published this reason held filed exempt from action what have been would their if liability common-law an unqualified meaning had been language attributed to the 22. of § present case is very opposite these, and the should, I reasoning think, like opposite lead to the result. carrier, For the Mitchell Case Company instead of schedules, published observing departed them. itself alleged “trackage And "'the' and lateral allowances” had no sanction or filing nor publishing, any made order .of by Interstate Commerce Commission. And the Mor- Company risdale the car distribution scheme,pursued Case, had not defendant been sanctioned Commis- sion, TERM,

Pitney, J., U. S. Moreover, past both of cases relate to present trans- for this all exclusively. And reason are not at actions related, of the Case, Pitcairn within the doctrine to matters wholly futuro. “trackage discriminations attributed

If the in Mitchell Case, had received lateral allowances” by 6 Act given sanction such as previous § if in rates, schedules of the Morris-. and published filed of car distribution had method been estab- Case the dale an order Commission made or approved lished conferred powers exercise of administrative in the authority reasoning should'agree I Act, Illinois Cases Robinson and Central Abilene and at bar had to of the cases do with If either would control. future, practices it would rates control Pit- reasoning authority to me seem control. cairn Case would mind, misapplication it seems the Abilene, my

But Cases, well as a complete perver- and Pitcairn as Robinson Congress, trans- say that, respecting act of of the sion put beyond are by which of time past, in the actions lapse normally body that of an administrative cognizance the in futuro, respecting matters with only deals no acted, not has there shall be the Commission to such previous application in without action the courts body. administrative opinions me in it seems to that the great respect,

With confusing in legislative err the cases present both hand, judicial on with functions, the one administrative Case, Thus, in Mitchell after functions, the other. on the alleged plaintiff of the reciting the insistence arbitrarily fixed, allowances” were “trackage and lateral rebating, conten- .constituted a mere cover hand, defendant, other the allow- tion of on actually performed made bona were services ances fide carrier, were aid of shipper they by the v. PENNA. R. R. MITCHELL COAL CO. CO. J., S.U. reasonable, so prima and must be treated facie otherwise, courts until had determined as opinion follows: “These of the proceeds claims parties emphasize the fact that there are classes two of. acts which form the of a suit- for may damages. In basis one legal quality practice complained of may statute, not fixed definitely allowance, be so that an permissible, unlawful, otherwise lawful according or as it is or reasonable unreasonable. But to determine that question involves a consideration and comparison of facts, many and various and calls for the exercise discretion of the rate-regulating tribunal. The courts jurisdiction have not been given fix rates practices in direct nor can do proceedings, they so collaterally during of a progress lawsuit when the action Is based on the claim that unreasonable allowances have been If paid. the decision of such questions committed different courts, juries, with different the results would only vary degree, might often opposite in character— destruction uniformity rate and practice object which was the cardinal of the statute.” theory upon This which both opinions proceed, employed language the Mitchell Company Case “The being: no primary courts jurisdiction to fix rates.” —“In considering the question administrative reasonableness, the elements problem are the same, whether the validity involve of obsolete allow- ances, tariffs, discarded or current rates and practices.”— past “As to and present practices allowances,.the Com- same power, mission has the and there is the same neces- sity'to preliminary take action.”

And in the in opinion the Morrisdale Case Company (No. 207), referring to the different views that have been upon expressed the question car distribution, opin- the. proceeds: ion “These as to rulings validity the par- a ticular and the practice, facts that would a de- warrant TERM, 1912. J., 230 U. S. actually rule from a sufficient proper enforced, are

parture the of-a as to question the reasonableness to show character, administrative of car distribution rule and powers exercise discretion con for the and calls upon Commission,” citing Congress ferred — Case, S. 215 U. and Illinois Case, Central Pitcairn 215 U.

. sufficiently legis- obvious is of where It course body upon is called to inquire or lative administrative existing reasonableness rates respect with propriety sanctioning or these estab- practices future, upon is called to make some- lishing others for of investigation conditions, kind of facts, what same that a court and a jury, or a referee and circumstances adjudicating upon lawfulness and. must make -when practices in the past respecting reasonableness by a Nevertheless, suitor. the func- sought redress in the is legislative case one or admin- performed tion be, case and in the may judi- other case istrative, as cial. mind, juries, referees, time out of

Courts and investigate reasonableness upon called long be- They of common carriers. did it past practices and other administrative boards commissions fore legislation wholly when rested devised, and future Congress, Parliament, legislatures. and state me erroneous to conclude that, It because seems judgment must court do order things pass that a or respecting practices past transaction rates or a com- things like that a commission are of a carrier legislative body or must administrative mittee, or other respecting their functions proper perform do in order to management regulation, future therefore all. present practices past or rates of a investigations into legislative. administrative are consists down laws rules for Legislation, laying R, CO. v. MITCHELL COAL PENNA. R. CO. J., dissenting. U. S.- the future. Administration has to do with the carrying into effect—their practical those laws application to cur- management by way rent affairs and oversight,, includ- control, ing investigation, regulation and in accordance with, of, in the principles execution prescribed by the judicial function law maker. confined injunc- etc., tions, wrongs for the preventing future, and judg- redress for those giving past.. ments I Act, The Interstate it, Commerce look upon clearly these distinctions. recognizes

In Act as originally passed and under which these 1887, arose (February 4, cases 24 Stat. 104) c. company prohibitions duties of of discrimina- are prescribed, tion rates and otherwise and the Com- is established submit, mission for I purpose, primarily are that those duties observedin seeing See the of proviso future. permitting Commission relieve the § operation carrier from the of the long and short haul clause; requirement '6 that copies of the § of rates, fares and charges schedules pub- established and lished in with the Compliance same section shall be filed Commission, with the and notice it of given to all changes that, agreements .same; in the all traffic made arrange- ments with other common carriers shall likewise filed; be joint filed, tariffs on through rates shall be and these ‘1 public made shall be common carriers when di- said may, rected Commission so far as in the judg- Commission, ment of the be deemed practicable; and said shall from to time prescribe time the measure given winch shall be to such publicity rates,” etc. And or publish refusal carrier file schedules the subject carrier shall be to writ mandamus at the re- Commissioners, lation of the Commissioners as apply may injunction. complainant 8, declaring the But then comes common be § full injured for the person liable to the of damages amount ccxxx —IS von. TERM,

Pitney, J., 230II. S. Act, violation of with consequence sustained 'fixed court. a counsel fee has been so completely next section overlooked to it: may quote be well person or any persons claiming That to be “Sec. common carrier any subject provisions, to the damaged by either make may. complaint to the of this act Commission for, may or suit his or their provided bring hereinafter recovery damages which such own of behalf for. for be liable under the may provisions this common of or circuit court of the States act, any district United shall competent jurisdiction; person persons of to both said and must right pursue remedies, not have the of the two elect which one methods procedure each case of of In any for he or will adopt. hereinafter provided brought recovery damages such action court be pending may compel any the same.shall before which etc., attend, give appear, testimony, etc., to director, of the production papers books and may compel etc. No similar compulsory powers of such corporation,” Commission. given are the' Interstate appointment Sec. authorizes prescribes Commission and the qualifications. Commerce general Commission, duties of the Sec. prescribes most part subsequent for the unaltered by and remains made Unimportant amendments were amendments. 2, 1889, 855, 382, 25 Stat. and some- the act of March c. one important respecting production what more depositions evidence, testimony the use of taken under 10, February the act elsewhere, was made (cid:127) But an 26 Stat. examination c. 128. § to establish the convincing Congress .of the purpose language body, being Commission as an administrative authority manage- into the inquire that it “shall have subject ment the business of all common carriers of this and shall itself informed as provisions Act, keep r. PENNA. R. COAL CO. R. CO. 275 MITCHELL ' Pitnet,, X,. 230U..S. in which the conducted, and method1 same is

to the manner obtain have the from such and shall common full complete information necessary carriers to enable perform duties and carry the Commission out the it was created;” (amendment for which objects “ike authorized 1899), hereby and required the provisions Act,” this execute etc. The enforce provisions of this section remaining relate entirely machinery which these duties are to per- formed. provides complaints charges

Sec. 13 to be made person, association, municipal etc., organization, anything done or omitted respecting done, to be by a common carrier contravention of the provisions of' the Act; charges a statement of “shall bo forwarded by carrier, to such the Commission common who shall upon satisfy be called complaint to the or to answer the same in within a reasonable writing time, to specified be If Commission. such by carrier, the within common make reparation time shall for the specified, injury alleged done, said carrier shall to have be relieved of lia- complainant only bility particular of, violation for -If complained law thus such carrier shall not satisfy .of. specified, within complaint the- time or there shall to be any ground appear reasonable for investigating shall complaint, duty said be the Commission the mailers -investigate complained in such manner and means as by such it shall deem proper,” etc. 14, “Whenever an

By investigation shall be by made § Commission, it said shall its duty to make a report .be writing thereto, shall respect include the find- which the ings conclusions fact are n based, .together with its as to what recommendation if any, by should made reparation, be the common carrier may to any party or who parties found to have been findings and such so madé-shall all injured; thereafter, TERM, 1912. J., dissenting. 230 U. S. evidence judicial be deemed proceedings, prima facie every to each found.” fact By duty it is made to deliver the Commission § carrier, a with a notice copy report of its common law, or to make desist violation cease and from both, done, to have been injury reparation found so, "a time; and if the carrier does within a reasonable by be entered of record statement effect shall shall'thereupon Commission, common carrier said such liability par- or penalty be relieved further ticular the law.” violation of obey a if or refuses

By the carrier violates § Commission, latter lawful requirement order summary by is to to the United way petition a apply or other- injunction, mandatory Slates Circuit Court for of this section made act wise. The amendment- 855, 860, expressly Stat. saves 2, 1889, March e. by jury in controversies requiring of trial any such'pro- Seventh In trial under the Amendment. findings prima are made ceeding the of the Commission of the matters stated. evidence therein facie are, as it seems remaining The Act provisions indicated accord me, general policy all in with the not. primarily, those cited. Commission is .above render sense, judicial It can or in any proper tribunal. no trial hold judgment binding upon parties,-can no against process enforce its jury, cannot awards merely arc against the or its awards person property; effeef, evidence, prima any without conclusive facie of the of courts through and be enforced the" must .aid of the Execu- body; It is branch law. an administrative the aiding in charged with of tive the Department, duty by the carrier imposed upon enforcement the duties incidental —author- only and with Act; incidental —and the or, rather, repara- to recommend ity reparation, to award In of its happens, investigations, the course tion where PENNA. R. R. CO. v. CO. 277 MITCHELL COAL J., 230 U. S. has of the carrier practice that some improper

to learn that calls for produced injury shipper redress. years arose in the 1897 to 1901;

The Mitchell Case March, 1902, during period Morrisdale Case 1905, arose, Both December, to both inclusive. actions 1906, therefore, Hepburn 29, Act of June prior 13, 1908, 3591, 35 584, April 34 c. and the acts Stat. 18, 539, and Stat. c. 309. 60, 143, 1910, c. June Stat. however, the amendments see, any do I not change in of the carriers, material the duties makes in the them, functions remedies breach Commission, or mode Interstate Commerce of the so as the performed, question far they are be in which By those amend- consideration concerned- under now 19, 1903, 32 February the Elkins Act of ments, by of the Interstate original scheme 847, c. Stat. powers has Act been elaborated Commerce rate- extended, inclúding grant in rates, advances making power, power prevent Commission was only emphasizes But this etc. body legislative as a executive having established judicial rate-making power For the powers. than rather of the legislative. is a branch distinction, important very clearly another

There Abilene the court opinion in the recognized Case, nearly of, as it sight lost pretty Co. Oil Cotton is, in the and that me, present decisions; seems general pre- of conduct rules between distinction Act, by and the standards by the scribed obedience Thus, is to be tested. the rates rules those § be unreasonable; shall not § shall general rules; These' are the discriminatory. practical them in the enforcing operations method prescribed rate and the carrier is sheets § them. to the Commission revise committed function 'l'RRM, 278 OCTOBRR J., S.U. (li.ssrnl.LUg. hTMn, lias filed, etc., the rate sheet it of Where course binding particular expression as the general, becomes in-§4, Again, general thereds principle. prohibition “long and short haul clause”; known as but for expression it, as applicable manage- to the particular system, railroad Commission given act, ment of a may to that section declares. Clearly, as the proviso until acts, general prohibition the Commission is unquali- acted, the Commission has fied; and, when its .modification general law as the prohibition is as much was before. reasoning, think, And this I applies respective action, under causes of now consideration. Section unjust discrimination.” If when the says— “No or the duly published, lawfully rates Commission has are the; or order acted, schedule furnishes for time determining unjust what is measure of discrimination. filed rates But, until the are acted, Commission has is, other case of every law, like .violation a question courts, to be according determined to the terms And so of the with un- prohibiting law. undue and § preferences advantages reasonable particular which, course, shippers, of discrimination car dis- tribution an instance. When the has action in lawfully taken accordance with its administra- Act, tive duties, prescribed order require- ment but until applicable; becomes such order or re- made, duty quirement prescribed 3 remains § if; And under unqualified. either section, the question in the course arises reasonableness an action in the courts, must be determined according to the facts and law, determine just as courts every other eases within question reasonableness cognizance. their In the Abilene court recognized Case the something must be taken the force and effect 9 and §§ in order to' give full effect to the context and general the. scheme and therefore it- Act; naturally (and, COAL CO. A. R. MITCHELL PENN R. CO. 279 Pitney, J., dissenting. 230U. S. concede,

I held necessarily) that the of action con- by 9 “must ferred be confined to redress of such wrongs § can, consistently with the context of the Act, be re- previous dressed courts without action by the Com- mission, and therefore does imply in power a court (cid:127) to. hear primarily complaints concerning wrongs character the one here complained of.”

That to say, complaints against a who had carrier observedthe established schedule that was made by the Act the conclusive evidence (until modified the Commis- sion) of what rates should be deemed law, reasonable in could not be entertained by the (prior courts to action by Commission) upon, the' theory that although reason- able in law the rates were in excessive fact.

This, however, in plain terms left open the doors of the courts to suitor seeking pecuniary redress for other Act, violations of the not sanctioned by public schedules by any regulation other declared obligatory the Act. Arid within that category, as think, present I are these actions, brought against a must assume (as we in order to the jurisdictional determine question) violated the Act, instead of observing that so far from it; adher- ing to published regulations, or mandate of the Commis- sion, or other order rendered obligatory by Act, set own up standard of practices discriminations, and maintained them in the right defiance of of these to fair plaintiffs and equal treatment.

But the effect of the present if decisions, I apprehend correctly, them is to leave no force whatever remaining 9. The Abilene excluded Case its wrongs § from of the character one there complained of; the present decisions excluded from its of the wrongs char opposite acter. That case exempted action, from the carrier who had observed consistently the published schedules; present (Mitchell) case shields the carrier who systematic ally departs published schedules; and, bj' a parity from TERM, J., 230U. S. in exempts decision Morrisdale Case reasoning, liability at systematically law carrier who primary distri equality respect

violates the rule of with to car bution.

In the amendments that enacted numerous have been by Congress during years Interstate Com- force, merce Act has been no instance has any change 3, in either (§§ 2, 9) been made the sections 8 and Nor are here has important. changes made duties the Commission operated deprive his shipper of aggrieved private Indeed, action at law. the third section Act the Elkins 19, February 847, 848, c. Congress, 32 Stat. author- —while izing the Commission to the apply Federal court for an tariffs, of the published enforcement or a discontinuance discrimination, of the and district authorizing attorneys, the direction of Attorney General, under the to institute prosecute proceedings, careful to declare —was proceedings that —“The provided this Act by shall the preclude bringing of suit' for the of dam- recovery ages by any party injured, or other any provided action -approved fourth, said Act February eighteen hundred eighty-seven, entitled,” etc".

But, according the construction now for the first adopted, time the majority instances the the aggrieved shipper to resort to the ordinary courts of law for the his recovery damages is subjected to an onerous or at precedent; least it condition may be so subjected carrier; at the option for, of the in No. (the Mitchell Coal Co. Case), is the shipper driven to the Interstate Commerce Commission in respect of part of his claim of the because defense that the interposed; while with respect to the claim, residue his because character of different, the. the action must defense '- at proceed law. short,

In without legislative repeal 9, the op- § R. R. CO. COAL CO. PENNA. MITCHELL J., 230 U. has been shipper transferred

tion there conferred carrier. apparent upon becomes How serious is difference first go The must Com- shipper little reflection. h he before Commission gets mission. But when if gets he succeeds he succeed; no may may not carrier, adjudication binding upon is are findings only correct prima terms of the Act such facie amount of fact and dam- so determine far he still resort order recover them must age. In to lose his a chance Thus, shipper has case courts. Commission, no to win it but chance there. before the conclude the may Commission case ruling The it in his against him, conclude cannot favor. of a bona let us the normal case

Now, suppose claim, fide the complaining where there is no more probability he will probability will succeed than that fail. party Commission represented by success before the is Y- go court, If he then successful, fraction must no more being than finding evidence, shifting not even the burden proof, again represented of success shipper’s probability Y- must two fraction he receive concurring Since his success both tri awards, of ultimate probability In short, x represented instead bunals Y M- the, Congress him, he is having option gave of that con contrary a line of to the tenor single procedure, fined to Act, is and his of success reduced from probability of the out,of chances” to “one chance four.” down “equal that arise- is said that these questions It about rebating compli- of and car distribution are practices objection perti- difficult. is not Certainly cated nothing beyond I see to the cases. present nent law ques- of in the Case. The of a court Mitchell grasp holds, as court now must the deter- that, this tion await Commission, concerns the allowances mination of TERM, 282 1912. J., 230 U. S. Milwood,

to the and Glen Altoona, Mines; White and it mere question any substance a fact as to whether much, thing, ought and if so how for cer be allowed services, tain if hauling like; and the too much was al lowed, otherwise, the allowance was cover rebating; not. And Morrisdale Case itself, according reduces to a narrow opinion, question upon of law admitted old whether, during facts. It is the question periods when the shortage, car carrier unable furnish all necessary the cars to meet the for transporta-' demands tion, having cars shippers privately by themselves, owned having railroads cars their own- to transport used ” their fuel, shall, by reason these “private cars “fuel- cars,” greater share distribution of gross transportation facilities for than would be the if case supply undertook cars shippers. own all It is a familiar has been times question, several before Commerce Commission, Interstate decided them a question upon law the authority ancl reason ing of the decisions of the R. courts law. R. Com. of Ohio 12 Valley R. Co. Traer Hocking R. I. C. v. 398; C. Co., & Alton R. R. Chicago 13 I. C. Hillsdale 451; C. Coal Co. Co., & R. R. The Pa. C. C. order I. Hocking Valley in the Case, I. C.C. is the sustained same that was this court Illinois in the Central U. S. 452. Case, 215

-But, everything that conceding may be claimed respect- ing difficulty of the inherent properly passing upon with, cases, they no more difficult than many others are of equity which courts of law and have to grapple.' Commission, Interstate far Commerce so passes as it any quasi judicial judgment upon such' matters, does so by the pursuing methods are modeled those courts, court has this recently cannot held departed rendering from without the proceedings void. Com. Com. v. & Int. Louisville Nashville R.,R. U. S. 88. R. CO. v. PENNA. R.

MITCHELL COAL CO. J., 230 U. S. in all judges, courts,

But if all the Federal the Federal command, who are their and referees at and the masters practical grapple matter with these unable as a are probability shall be said of the that questions, what Commission, a with single body, Commerce Interstate Washington, powers, at with limited headquarters its legitimate in the line of .adminis- with enormous labors dispose of the functions, properly will he able to trative is to be it? imposed upon work that now judicial mass of it these matters necessary that is It is said set- preferential practices discriminations and other rate question But is not this tled tribunal. single terms'confer did not Congress? Congress plain And to the shipper option going upon the aggrieved Congress has Commission? And courts than rather second, third, eighth, repeal manifested intent and ninth of the Act? sections in the opinion recognizes Mitchell Case only “quasi-judicial orders are determine correct so far as only prima facie since it involves damage which, and amount fact —as the carrier money taking property, payment right in court and the Act, day given 16 of by § shipper But hearing 859).” Stat. judicial (25 to a judicial hearing? to a to his in court day not entitled for the of a regard right any greater Constitution Has the of a shipper? than has for jury carrier to trial not, because of do, I could Congress as Conceding, of an finding make adminis- Amendment, the Fifth trial, final as against acting without body, jury trative great respect, gives -with carrier, submit, I Act if we construe it meaning unconstitutional jury. his without trial shipper remedy depriving the brought if to be in the actions It is said that findings separate separate suits permit courts —“to would, equality the statute only destroy TERM,

Pitney, J., dissenting. 230 U. S. intended permanent, should be but would about bring direct conflict in the administration of the law.” I con- fess unable understand how myself redress giving for private action past mal- consequences in way administration can conflict with the proper law, administration if I which, term, understand the applies to the execution of it in present and for the future.' It is unfortunately that, true since courts and juries human, are in result one case doeá always another, seem to accord with the in result This is theoreti- cally true of all suits at law; practically, the successful of justice administration in the courts belies the theory. sees in court a purpose Act all have matters affecting rates and the regulation practices that have to do with equality service on the part the carrier shippers towards the “settled aby single tribunal.” I in difficulty have no finding purpose Act a to confer the administrative power, the regulating power, upon a single tribunal, wit, the Commission. But I noth- find ing, and the opinions refer nothing, indicating a pur- pose past transgressions that of the Act and cognizance for brought- suits the redress of injuries consequent upon transgressions shall be determined single aby tribunal. It would seem more probable Congress that uniformity considered precise with respect to administer- justice ing, for offences to past be an unattainable dream. repeat; administration, I management, regulation, concern present themselves with the and' the future. The award- ing of relief for past offences properly a judicial function. And, Act, Congress read the jurisdiction conferred as.I. over such offences courts; giving at the same time' option to the shipper resort if he would to the Com- mission instance; first doubtless on the theory the simple cases, and those involving small amounts, would go (as experience demonstrates gone) Commission, and that thereby that body, v. PENNA. R. R. CO.

MITCHELL COAL CO. Pitney, J., '230 S. U. accomplish (by its recommendations

while enabled to way much warnings) remedying past griev- ances, at the time be put possession same of in- would from sources that" hardly formation otherwise would accessible, so basis of that on the that information it could proceed regulations to establish the future. may, highly illogical

Be this as it it seems to me to say damages to a shipper shall not be awarded viola- tions of the law committed common carrier in the thereby pa§t, shipper would “secure a because belated preference.” The-argument but undue overlooks the fact that, that a hypothesis exists, cause of action upon has a given preference the carrier who to the plaintiff’s damages resulting it is for the from that competitor; pref- if and, brought; erence that action is the action be determined, aggrieved justly gives shipper to the a be- lated, presumably due, recompense. a I

That have not misunderstood the real questions at Abilene, Robinson, Central, issue in the the Illinois will, think, and the Pitcairn I from a appear Cases critical cases, of those in aid of which the following' examination italics, and comments are submitted (the extracts most my own). instances, being

Texas & Co. Oil Ry. v. Abilene Cotton Co. (1907), Pacific Stat., was a review under Rev. U. of a § a judgment of Texas state court. Abilene Cotton Oil principles Co. sued on common-law to recover moneys alleged freight been exacted for on cotton seed just charge. over and a reasonable There were above 430) “That exacted was (p. averments the rate discrim- inatory, constituted an undue preference, amounted for a than for a charging longer more shorter haul.” 432) But averments were eliminated in (p. these the course findings, of the trial. The as condensed court by the below, 432) were that it was interstate (p. shipment, charged by and the rates the railroad those company were - TERM, 1912. 28&

Pitney, J., 230 U. S. Act, the Interstate and had under established Commerce but that in fact published; filed and duly This court (by and excessive. the present unreasonable White) Justice, (p. 436) then Mr. Justice said Chief was: presented question Regulate and effect of Act to Commerce scope "The an action at law shipper maintain right damages to recover because of common carrier against rate, although the alleged of an unreasonable exaction stated in complained was rate collected rate filed with the Interstate Commerce Commis- the schedule according requirements published sion and Commerce, duty and which it was the Act to Regulate as against shippers.” under the enforce law recovery right sustained After pointing but.that within common-law clearly below 'by the court words stated, many and was not so abro- principles Act, proceeded to in- gated the Commerce the court impliedly this common-law had quire whether heen Act, general and to what extent. The away by taken then reviewed as Act was follows: scope of the detail, going give into an-outline of the us, "Let without Act object fixing rights of that with the general scope create, to conserve or the wrongs which was intended redress, the the to remedies which proposed which it the accomplish to the which purposes Act established in view. lawmakers had it the

"The Act -made of carriers to its duty subject only to reasonable rates. To charge just and provisions was of duty imposed establishing pub- end the of such unjust rates. It forbade all schedules lishing discriminations, depart made to preferences unlawful the were in the established schedules until same the rates from Act, the such was departure authorized changed or punishable imprisonment, fine or offense made of the and the punishments Act prohibitions the both, and v. PENNA. CO. MITCHELL COAL CO. R. R. 230 U. S'. Pitney, J.,

which it were not imposed only against directed carriers directly but or against shippers, who, or indi- any person rectly, by any any machination or manner what- device soever, accomplished the producing wrongful result of or discriminations preferences the Act It forbade. was 'the duty made of to Act to subject carriers file with the Interstate Commerce Commission created that Act copies schedules, established was power body conferred as to form of provide to penalties schedules and imposed establishing were not and filing required schedules. was The Commission endowed plenary with administrative to power supervise carriers, investigate affairs, conduct of to their their ac- counts dealing, and their methods of and generally to en- the Act. To that end provisions it was made the force duty Attorneys of the District States, United under direction Attorney General, prosecute pro- ceedings commenced to'enforce com- by the Commission pliance with the Act. specially provided The Act common provisions whenever to its any subject 1shall do, cause to be done, permit any act, or be done thing matter or this or Act declared to prohibited be shall unlawful, act, matter, omit to or any thing do this Act required done, such common carrier shall be liable to person persons injured thereby for the full damages amount of in consequence sustained this .’ provisions violation of the Act. . . Power was upon the to hear con- complaints conferred cerning violations investigate same, and, Act, if the complaints founded, only well direct to order making reparation injured persons, carrier to desist such violation in the In the future. event of the failure of obey a carrier to the order of the body, Commission that party or the favor an whose made, award of was reparation empowered compel compliance by invoking authority the courts of TERM, n .dissenting. J., 230 IT. S. statute, out pointed in the' manner United States being findings courts to the given effect such prima facie ninth By Commission. section by made of fact as follows: was.provided it of the Act. ‘1 by or to be any persons claiming damaged person That provisions carrier of this Act subject any common Commission, either make may complaint hereinafter or own suit in his their may bring providedfor, for behalf which such common recovery damages for this District Act, under the may provisions be liable jurisdic- States competent or Circuit United Court-of such, persons shall not have' the tion; person in each ease remedies, both of said and must to. pursue herein one of the two methods of procedure elect which . he or . .’ will provided adopt. we shall section hereafter con- fully

“And sider, .existing statutory common-law and appropriate saved. remedies were . Regulate the Act to Commerce was enacted

“When whether, contrariety opinion when a rate there was reasonable, a carrier was in and of itself charged by charge from whom such a exacted had at person was. against an action the carrier because dam common-law .of have- been discrimination age asserted suffered. given or- preference the carrier to against person (Parsons v. & Northwestern Chicago another. Ry., 167 Interstate Commerce 447, 455; U. S. Commission v. Balti R. R., 145 U. S. 275.) more & Ohio That thé Act to was intended to afford an Regulate effective Commerce redressing wrongs resulting means for from unjust preference and undue discrimination' undoubted. In deed, open controversy is not to provide these the principal purposes Act. subjects among (Interstate Commerce Commission v. Cincinnati, Or New Ry. Co., Texas 479, 494.) leans & 167 U. S. And Pacific that the means which apparent these great purposes MITCHELL COAL CO. v. PENNA. R. R. CO. S." Pitney, J., dissenting. 230 U.

were to be was the accomplished placing upon all carriers the duty establish schedules positive reasonable rates which have a should to all and which application should not uniform departed be so as the established long schedule remained from unaltered in manner law. provided by (Cincinnati, New v. Interstate Commerce Orleans & Texas Co. Ry. Pacific 184; 162 U. S. Commission, Interstate Commis Commerce sion Cincinnati, New Orleans & Texas Ry. Co., Pacific Ib. 479.) general “When the of the Act is scope enlightened by the considerations stated it just becomes manifest that there is a relation, but an only indissoluble unity between the the establishment provision and maintenance rates for" accordance, corrected in with the statute and the prohibi- until tions against discrimination. This follows, preferences because unless the requirement of a uniform of. standard rates be complied with would result that violations of the statute as to preferences and discrimination would inevitably so, follow. This is for if it clearly be that standard of rates fixed in provided the mode by the statute could be treated on the of a complaint a shipper by court without, unreasonable, jury prior action reference Commission, finding the established rate to be un- by reasonable and to desist ordering in the future pass would come to that a shipper violating Act, from relief might upon obtain the basis that the established rate unreasonable, opinion in the of a court and jury, and thus such shipper preference would receive a or dis- enjoyed crimination not by against those whom the schedule rates was continued to be enforced. This can only by suggestion be met the judgment of a court, when based a made complaint shipper without previous Commission, give action the- would rise to a change schedule rate and thus cause the new rate resulting the action of the court to be in future as to however, all. suggestion, applicable This voq, ccxxx —49 TERM, 1912. J., 230 U. merit, only serves to illustrate manifestly without pro- of the Act and the remedial destruction

the absolute recogni- which it created which would arise from a visions if, previous asserted. For without action tion of exerted Commission, might be courts and power reasonableness to determine the an estab- juries generally all rate, lished it would follow unless courts reached standard rates in the an identical conclusion uniform as the standard would fluc- impossible, would future divergent the conclusions vary, dependent upon and tuate by reasonableness the various courts called reached subject original the as an In- upon question. to consider of such right wholly deed the a inconsistent recognition the with the administrative Commission power conferred duty, which the casts upon and the statute with it that .the body, seeing statutory requirement as to of rates is uniformity equality observed. Equally is it that the existence of such power obvious a in thé courts, action the independent prior by Commission, to the favoritism, would lead enforcement of one rate another, in one and a different one in would jurisdiction destroy against the prohibitions preferences discrim- ination, afford, moreover, ready means by which, through collusive proceedings, wrongs which the intended remedy statute was could be in- successfully ' flicted. Indeed no reason can be perceived the enact- ment of provision endowing administrative tri- bunal, created, which the Act power, with on due proof, to award only reparation a particular but to shipper, command carrier to desist violation the Act compelling thus the alteration of future, the old or the filing schedule, of a conformably new to the action of the Commission, if the was left in power courts to relief grant on complaint of any shipper, upon theory that established disregarded rate could be and be treated as unreasonable, to previous reference without action CO; v.

MITCHELL COAL PENNA. R. R. CO. J., dissenting. 230 U. This premises. because, must be, if in both existed courts and the power- Commission to subject, on this

originally complaints hear there might' be between action of divergence the Commission words, of a court. the decision In other the established schedule found reasonable anight Commission' in the first instance and unreasonable a court acting originally, thus would a conflict arise would render the impossible. enforcement of the Act merit

"Nor there contention that section 9 of in.the the Act that it compels was the purpose conclusion to confer Congress power upon courts primarily enforcing relieve from the the established duty rate finding person that the same as to a particular corpora- justify tion was so unreasonable as to an award of dam- ages. terms True is that the of the section general when might a conclusion, takon alone sanction such but when of that is read in provision section connection with the context of Act and in light considerations enumerated, which we think we the broad construc- contended for-is tion not admissible. And this becomes cogent when it is observed particularly power that the the courts to award to those damages claiming to have injured, been provided section, as in the contemplates only of a decree in complainant, favor redressing the.individual wrong the asserted to have been particular doné, and does not power embrace the to direct the carrier to abstain in the future from similar of violations the in Act; other words, to command a correction established sched- ules, shown, as we power, is conferred by the Act the Commission in In upon express terms. other words, we think that it inevitably follows from the con- text of the the Act that an individual independent of to maintain originally actions courts to in obtain pecuniary redress violations the Act the ninth section of conferred can, must be to redress wrongs such as con- confined of TERM, 1912. 230U. S. J., by courts Act, the redressed the with context sistently of Commission, and, therefore, the action without previous hear com- a court primarily the in power does not imply the one here the character plaints wrongs concerning of of schedule of rates an established Although complained of. the voluntarily as by a carrier altered may have been order of the of an enforcement result violating law, rendered in accordance desist from statute, may be doubted with the provisions of the Commission would nevertheless that power awarding legal. of and hearing complaints extend to wrongs individuals for suffered reparation unlawfully during the unreasonable from the schedule application schedule in force.” when period was courts, in lower citing After decisions Federal two court, decisions this distinguishing previous several U. upon Hefley Case, relying showing as Case, 202 U. S. Mugg the established binding, opinion (p. proceeds 445): rates binding rates “In effect of view established in shipper, both the carrier as expounded just to, court referred con- the two decisions of this holding if tention now made would-necessitate the adopted . that a of action in favor a arose from the shipper cause when, agreement, carrier to if the failure make an agreement the carrier and the made, had been both shipper agree- of a criminal offense guilty would have absolutely impos- ment would have been so void to be suggestion sible of enforcement. Nor there forte recognition like dilemma arises from the of power that a in- to award an reparation the Commission favor finding a rate body because of dividual schedule unreasonable. As we have established shown, there distinction between the two cases. wide the is called on the an upon complaint When of reasonableness an established the consider individual of R. CO. FENNA. R. CO. COAL MITCHELL J., 230 U. a departure is ‘not authorize merely invoked

rate, power alone, exert the but to such rate in complainant favor from of is Act, it the complaint the authority upon if conferred a new schedule just, to be to compel establishment of found reasoning ap- like be And would rates all. applicable of after of individual plicable reparation an granting of wrong schedule a new because the establishment when the unreasonable schedule during period endured change and before its was enforced words, In difference one. other establishment of new on the one hand would between the two that which uniformity of rates which arise from destroying on the other of the statute to secure and was the object the statute commands. enforcing equality that, cogent may insisted however be “But control, stated, because should previously views in section provision' contained following Nothing, Commerce viz: £. . . Regulate Act to in.triis alter abridge or way shall in Act contained rem by statute, or but the existing at common-law edies now to such remedies.’ Act are addition provisions of this as clause, however, cannot in reason be construed This the continued continuing in,shippers right, a common-law absolutely inconsistent be with which would existence cannot the Act. In other words Act the provisions concerned alone destroy itself. The clause is held to be imposed by duties the Act and recognized in or rights with provision question purpose the manifest given any specific remedy intention that plain make cumulative, as other regarded when the Act should remedies existed statutory common-law appropriate wrong dealt grievance particular redress for the in the Act. with if the be construed statute proposition

“The generally, shippers, at the instance courts depriving estab basis redress power grant TERM, .294 Pitney, J., dissenting. 230 U. S. lished rate previous by was unreasonable without action result, great argument commission only harm will legisla inconvenience which assails the wisdom the .j tion or its affords no so in efficiency and ustifieation for destroj7' however, statute to it. if terpreting Even, as in liberty case at to we were from the obvious any depart and necessary intent of a statute upon considerations expediency, we are admonished that suggestions are here advanced on this expediency shown record seen, Aswe justified. although Regulate Act in force many Commerce has been years, appears exposition judicial practical execution has interpreted applied in accordance with give construction we it. That the result of such long-continued, uniform construction con has not been sidered as harmful to the public interests is persuasively demonstrated fact by the the amendments which have been made to the Act only have not not tended repudiate but, such construction, on the contrary, have had the direct effect of if strengthening making, pos sible, more imperative the of the Act provisions requiring Ihe establishment rates and the adhesion both carriers the rates as shippers established until set aside pur suance to the provisions ihe Thus, Act. section 1 of approved act February 19, 1903, commonly as known Act, which, Elkins although enacted since the ship question, ments in is yet illustrative, the willful failure part any carrier to file and publish ‘the tariffs or rates charges,’ as required the Act Regulate Commerce and the acts thereof, ‘or amendatory strictly to observe such tariffs until law,’ changed according to was made a misdemeanor, and it was also made a misde meanor offer, grant, give, solicit, accept, any or receive rebate from published rates of other or concession dis crimination. And in the closing sentence' section 14t provided as follows: COAL v. PENNA. R.

MITCHELL CO. R.. CO. 295 Pitney, J., U. S. any “‘Whenever files with the Interstate Com- or publishes a particular merce rate under the of the Act Regulate Commerce provisions or acts to. thereof, or amendatory participates rates so filed rate against carrier, published, officers, under this agents any prosecution begun Act, be con- shall rate, deemed to be the and clusively legal any departure from to any depart such rate or shall be to deemed offer therefrom this section this Act.’ be an under offense “And, by 3, was conferred power section the In- Commission to terstate Commerce invoke equitable enforce, of the of a Circuit Court United powers States to the published observance tariffs. “ Concluding, do, as we that a shipper seeking reparation the unreasonableness rate predicated upon established Act to must, Regulate Commerce, under the in- primarily through the voke redress Interstate Commerce Commis- alone is sion, body power which vested with originally to for the alteration of proceedings entertain an established the rates schedulé'because fixed therein aré unreasonable, unnecessary us to consider it is whether the court jurisdiction have had to afford relief if the below would had not repugnant asserted to provisions to Regulate of the Act Commerce. It follows from what erred in said, we have court below the construc- gave Regulate'Commerce.” it the Act to tion which short, the Abilene Case decides is, In what Cotton Oft commerce the Act respect by that- with interstate be it should determined language prescribed own how what carriers, be rates should how such charged by and rates manifest; be made and that while of the should Act § - charge rates, and reasonable beyond just prohibited duty establishing and sched- imposed publishing it end ules, very enforcing'that provision, and unjust prevent preferences and discriminations it effort depart it schedules rendered established unlawful TERM, J., 230 U. S. . they changed by until the administrative- Commis- thus sion; wherefore rate established published must be deemed in law a reasonable rate for all purposes affecting the of the carrier and between rights shipper themselves by commission, until been altered had. might done if found in fact. be it unreasonable entire reasoning opinion quite consistent as if con- logical, well most cogent convincing, that subject-matter. fined to

But to so apply reasoning as to make support contention that discriminations by the past, established, amounting to a departure by carrier from schedule, and effectuated of secret giving rebates competitors violation of other discrimina- § tory practices violative where the conduct § the carrier has no sanction under the law prima facie filing reason of the schedule, of a or other- publishing shall not wise, course of ordinary actionable law without previous investigation the- determination commission subject, is not only ignore essential differences between the in this case and facts those Case,.but the Abilene is virtually eliminate § Act, Interstate Commerce Congress in all its of amendments has been leave un- scrupulously careful touched; and to make the Interstate Commerce Commission, of and, instead an administrative quasi-legislative body, with of duties to perform down respecting laying rules of and that the seeing carriers mnia’nue to to their future conform without, Act, under duties but judicial body judicial powers, by the proceeding ordinary law, process, of written notices,- sent here and there and everywhere persons concerned; not in actions inter but in omnibus partes, investigations conducted with associations and shippers of municipal other corporations organizations, parties as railroads, the one part, groups as parties iiieir holding other sessions in part; Washington wherever MITCHELL COAL CO. v. PENNA. R. R. CO. 297 Pitney, J., U. S. . them; without pleases ample power to the produc- enforce evidence; tion any power their .without enforce findings. Baltimore & Ohio

Robinson (1912), U. R. Co. is in 506, .like principle exactly the Abilene Case, and was decided upon authority. its There, published schedule and filed to the Act conformably made a differential be tween coal into the loaded car from wagons and coal loaded from a tipple. Robinson’s having shipments- come the higher rate, under he sued to recover $150 which company was the paid by excess him over what would have been if required his coal had loaded from tipple. There an agreed statement facts, .a but in it was no suggestion that schedule had been the subject of complaint before the Interstate Commerce Commission or had- been found that Commission to be unjustly discriminatory, order had been made it. about this properly court held that Naturally there was no of action. The pith reasoning is lucidly expressed in opinion of the court Mr. (by Justice Devanter) Van 508, 509): (pp. follows Act,

“The c. 104, 24 Stat. c. 379; 25 Stat. 855; c. 28 Stat. c. 643; 708, 32 Stat. 847, whilst prohibiting charges, unreasonable unjust discriminations and undue preferences ,also carriers subject provisions, its. in which prescribed, that prohibition should manner be. say, is to the Act laid upon' enforced; every carrier the duty of publishing in a filing prescribed mode, schedules the rates to be charged transporta- tion over property road, rates named declared in schedules so established should be conclusively deemed to be the legal rates changed, provided Act, until in the for- bade any deviation them while they effect, remained in from invested the Interstate Commerce authority Commission with to receive against complaints rates so established, and to whether inquire they in any wise violative : find TERM, 1912.

Pitney, J., 230 U. S. what, Act, and, so, any, injury the provisions of if if others, thereby complaining done to to person had been authorized n to direct and further exist, and ‘make any violation to to desist .to found to have been done. Pro- any injury reparation for found made for enforcement of the order vision also by an action in the Circuit Court of the for reparation, States, if the carrier to with it. comply United failed for the unreasonable “Thus, purpose preventing preferences, discriminations and undue charges, unjust establishing, maintaining altering rate system redressing resulting from their injuries schedules and whereby would be adopted publicity enforcement was their given rates, application obligatory would effect, remained in and the and uniform while matter conformity to standards would be prescribed of their clothed single tribunal with primarily committed investigate and to order the cor- complaints authority to those standards any non-conformity by an rection change in schedules and due appropriate by reparation injured persons. of the Act añd the means selected purpose “When of that are- accomplishment purpose understood, altogether plain contemplated it is the Act designated and order investigation -tribunal, an Commission, should be a pre- the Interstate Commerce requisite to the to seek the courts be- reparation alleged cause of exactions under established schedule prescribed of the standards.” be violative The Abilene and Robinson Cases maintain the binding rates published force and differentials established Act, until modified the Commission pursuant provided manner the Act. give The present decisions force to discrimi- same practices established natory carrier without leave Commission, not included in rates the published v. PENNA. R. R. 299 MITCHELL COAL CO. CO. Pitney, J., dissenting. U. S. differentials, being the in violation- practices direct of the Act.

Interstate Commerce Commission Illinois R. Central brought 215 U. S. suit (1909), Co. was a the Rail- Circuit Company road the United States Court of order of the restrain the enforcement an Interstate Commerce Commission car distribution. respecting the opinion issues were recited the of the court (by Justice, White) Chief then Mr. Justice as follows present 465): (p. the order of com-

“Being unwilling comply with the mission, the Illinois com- Company Central Railroad menced the suit which is now us to all enjoin before the enforcement of the order of the commission. respects, although It was averred that company the was adequately, with coal cars and with sufficient motive equipped power operative forces, supply at times an of yet inadequate coal cars to meet the demand arose the circumstances alleged which we have stated. It was previously for company ascertaining regulations adopted of mines for of capacity the distribution was reasonable, cars were all and it respects just commission, directing that the order charged taking of cars, into account cars in the distribution was private of of unreasonable, unjust, because oppressive unlawful, the owner's such cars to the use right deprived of their alleged that, It was further property. own foreign fuel the order was railway cars, unjust, also unreasonable, unlawful, oppressive and because such part road, cars constituted no equipment and, failing them, count could constitute un- an lawful discrimination giving unjust prefer- or the ence within the intendment of the act to regulate com- Besides charging merce. that the'order count company unreasonable, etc., cars it was averred that unjust, fuel to deal with cars was attempt commission TERM-, 1912. J., U. S. the com* to deprive and was but an power, its beyond effort purchase contrdct freely its pany lawful In addi- road. necessary operation fuel Majestic by the brought in the suit tion; proceedings temporary out, of a granting set Company Coal fuel foreign railway counting as therein injunction charged' was alleged, cars was private cars and the cars, of order those two classes event, as to in any the it compelled not lawful since was of the Commission in force. yet the was injunction which violate company all validity in answered the asserting The Commission substantially upon grounds itby made, the order respects of announced out report set in its and opinion which had been the com- All was made. the averments when the order it was were traversed and expressly power as to want plaint of coal cars subject distribution that the charged of order was power within administrative with dealt the Act to Regulate terms to the commission delegated '_ Commerce.” en- from enjoined The Circuit Commission Court into taking “in so far as it directed forcing its order of coal fuel cars in distribution company account shortage, and in so far as it directed of car cars times Interstate such cars into account.” The taking future court, this and the appealed to Commerce-Commission reversed on the that so as it decree was ground related far cars the order company fuel power. within its administrative (1910), v. Pitcairn R. R. Baltimore & Coal Co. Ohio petition on a 481, Company U. S. arose Coal the Railroad to restrain upon Company for a mandamus “ in the distribution of cars in discrimination the Fairmont Virginia, alleged be in region” violation West Act. 3 of the Interstate Commerce The petition § 1907, in January was filed the United States Circuit the act Court, under 1Ó of of March 1889 (25 Stht. § 3Q1 MITt 'I-IELL A. It. R. COAL CO. PENN CO. .L, dissenting. i3. 230 U.

855, 862, 382), cb. sometimes called § Interstate Commerce Act, because that number printed under Laws. pamphlet compilation Interstate Commerce provided any"of This section that for violation of the. provisions of the act of amendments, preventing 1887 and the relator at. the having interstate traffic: moved same rates as are charged, terms or conditions as favorable given by as those said common carrier for like under circumstances, traffic similar other shipper, “a might mandamus be issued commanding common move and transport traffic, or to furnish cars or other facilities for transportation party for the applying writ.” There numerous grounds of complaint, some of which were abandoned at hearing, and of the others the United States Circuit Court' (154 Fed. Rep. 108, 120) overruled one, all except with respect that awarded a writ mandamus. There were cross writs of error from the Circuit Court *ofAppeals,' which court affirmed the judgment so far questioned as writ, by defendant’s error, of the and reversed it in part so far as by the questioned relator’s writ of error (165 113, Fed. Rep. 132). Upon-review in this court it was pointed opinion out in the (by present Chief Justice) the. 492, p. question at that the was, could, whether the court grant prayed the relief consistently with the provisions of Regulate Aet to 493): the Commerce; (p. “ That by way prohibition, mandamus, the against act of order, and an sought by mandamus, way of invoked, was luhich judicial was allowed must by decree, operate, n upondll parties the numerous and various interests as a rule or as to the regulation matters complained the condpct of for in interstate commerce the When the situation of future. defined no thus we see from the escape conclusion that grievances complained the primarily of were within the ad- ministrative of competency the Interstate Commerce Com- mission, subject and not to be enforced, judieally at least TERM,

302 J., 230 S.U. by authority that clothed statute with body, until by had been afforded subject, complaint on the made to exert administrative functions.” opportunity to the referring Case, decision the Abilene And, after Act of the-provisions dealt with as existed the. 1906, opinion of prior pointed out amendment 494) adopted amendment 1906 to 15 (p. that § 589, 584, 3591), c. Stat. had the (34 of the Act effect was called of of repealing (what of 23 the Act partially § Act of really) 2, 1889, 10 March was 1887, but § c. 855, 862, already to, referred which per- 25 Stat. mandamus in courts award certain cases. mitted length at the effect of the opinion discusses 1906 remedy by mandamus con- amendment § Act, with the holding result of previous ferred so implied adjustment repeal was an there far in the case under regulations consideration car-shortage was concerned. was aid courts there will observed

But it regulations, and was denied respect with invoked future placed 1906 it was within the terms act because Interstate functions Commerce the administrative the mode which their orders were Commission, and the same amendment carried into effect to be prescribed. to find in the Illinois unable myself confess

I Central Cases, reasoning or of the opinions and Pitcairn holding ground general right therein, any original Interstate of thé Commerce action conferred § option a violation Act for §§ conferred by Act, 9 has of the same injured, party § upon where the conduct transactions "past as’to repealed of an order commission, has not the sanction carrier thing) same has not the is in essence the (what sanction Act, with the which the Act formal n compliance aof itself lawful, as was the prima shall he declares case with facie R. CO. R. PENNA. v. COAL CO. MITCHELL Pitney, J., 230 U. in consideration tariffs that published under

Abilene Robinson Cases. declare, To as was in the Abilene that Case, declared ¡the a carrier actionable as extortion in shall not held for past where it has the rates that were merely, charged fixed Act, is in the schedule in with the established accordance to my past' mind as far as that possible declaring from that are practices any finding sanctioned or schedule, or otherwise protected from attack provisions Act, of the are from exempt inquiry; court or that the carrier is exempt an action at ordinary law n the Act, violations in plain when and 9 terms §§ for declare that the carrier shall be subject violations at ordinary action and declare also that the law, aggrieved have the shall whether he will shipper option make complaint to the Commission or bring his action in court.

In answer' to the suggestion that the result reached in virtually these cases nullifies 9 of itAct, is said that § contrary just shown the decision announced Railroad No. Pennsylvania International Coal Co., As I ante, p. point endeavored to out opinion case, dissenting the court there concedes action, right effect denies the re- covery; for it excludes from consideration the only measure damages has been, be, ever generally can in actions applied that character.

The result decisions in these cases, three taken is, together, me, seems to so restrict greatly private right of hamper the action that Congress intended to confer 9 of Act, difficult to §§ aof case conceive where the injured shipper can, by the direct mode of at law, an action simple recover compensation substantial the discriminations practiced him by the carrier.

Case Details

Case Name: Mitchell Coal & Coke Co. v. Pennsylvania Railroad

Court Name: Supreme Court of the United States

Date Published: Jun 9, 1913

Citation: 230 U.S. 247

Docket Number: 674

Court Abbreviation: SCOTUS