The Commission without having urged the plaintiffs to go forward may dismiss the complaint for lack of diligent prosecution.85 But where it appears that the failure to appear was in not getting notice in time, the case may be continued.86 According to the practice usually, however, appearance on day of hearing is insisted on.87 Complaint was dismissed in one case where the position as taken by complainant obviously constituted an abandonment of his complaint.88 Clearly where there is no appearance in a reparation proceeding, the case will be dismissed.89 But also where there is a failure to appear and show unreasonableness, the complaint will usually be summarily disposed of in the same way.90

90

§ 1101. Dismissal of the complaint.

In formal proceedings before the Commission complaints must be prosecuted with reasonable diligence, and when a case has been formally assigned for hearing on a day certain, the parties must appear and present such evidence as they may wish to offer in support of their contentions, or, in advance of the date set, request postponement on stated grounds, showing good and sufficient cause for delay.91 It would be the usual practice to order dismissal on motion of both the complainant's and defendant's attorneys.92 But a complaint may not be dismissed without the consent of the Commission, as the public character of these proceedings prevents them from being dismissed simply on stipulation of the parties.93 A dismissal will be ordered where no complaint is made against reasonableness

85 Ocheltree Grain Co. v. Texas & P. R. R., 18 I. C. C. 412.

86 Patten V. Wisconsin Central Ry., 14 I. C. C. 189.

87 Producers' Pipe Line Co. v. St. L., I. M. & S. Ry. Co., 12 I. C. C. 186.

88 Ringfisher Mill & Elevator Co. v. Chicago, R. I. & P. R., 11 I. C. C. 220.

89 Wakita Coal & S. Co. v. Atchison & St. F. Ry., 15 I. C. C. 533.

90 Isbell-Brown Co. v. M. C. R. R., 15 I. C. C. 616.

91 Producers' Pipe Line Co. v. St. L., I. M. & S. Ry., 12 I. C. C. 186. 92 Wilhoit v. Missouri P. R. Co., 12 I. C. C. 137.

93 In re Advance in Rates, Western Case, 20 I. C. C. 307.

of the specified through rate.94 Where facts, circumstances and conditions bearing upon reasonableness of rates in issue are not sufficiently developed to afford a proper basis for satisfactory determination, the case will be dismissed.95 Dismissal without prejudice may be ordered where the record shows no clear basis for an order changing rates. Likewise the case would properly stand for dismissal upon a readjustment of the tariffs being made to the satisfaction of the complainants.97 Dismissal as to a defendant shown not to be involved in the issues is very common.98 If complainant by formal pleading admits reasonableness, the complaint will usually be dismissed." But it is considered improper practice to decline at an earlier stage informal adjustment, and then admit complaint in answer in formal proceedings subsequently.1

§ 1102. Stay of proceedings.

The Commission may in a proper case stay the proceedings and hold the case open until a future time. Where a similar case had been heard by the Commission and an order made and a petition to enforce the order was pending in the courts, the present case was stayed until final determination of the petition in the courts.2 And so where it seemed best the Commission having indicated its view of the question, recommended the carriers concerned to amend their tariffs in accordance with the opinion so expressed, and meanwhile held the case open for future application of the parties.3 It may often seem to the

94 Morgan v. M., K. & T. R. Co., 12 I. C. C. 525.

95 Shiel & Co. v. Illinois C. R. Co., 12 I. C. C. 210.

96 Dallas Freight Bureau v. M., K. & T. R. Co., 12 I. C. C. 427.

97 McRae Grocery Co. v. Southern R. Co., 12 I. C. C. 83.

98 Dallas Freight Bureau v. G., C. & S. F. R., 12 I. C. C. 223.

99 Zellerbach Paper Co. v. Atchison, T. & S. F. Ry., 16 I. C. C. 128.

1 Davenport Pearl Button Co. v. Chicago, B. & Q. R. R., 17 I. C. C. 193.

2 Southern Paint & G. Co. v. Lake Erie & W. R. R., 6 I. C. C. Rep. 284. 3 Paine Bros. & Co. v. Lehigh Valley R. R., 7 I. C. C. Rep. 218; and see Rea v. Mobile & O. R. R., 7 I. C. C. Rep. 43.

5

4

Commission the best course of proceeding to delay further action for an adjustment by the parties. And if the question of jurisdiction is raised it must always be considered before the merits of the controversy are determined. But an order may be entered where no objection is made by the defendants of defect in parties. Where a carrier at the hearing agrees to conform to the desires of the Commission, the usual practice is that no order will be made at the time; but the case will be continued to give the carrier an opportunity to remove the cause of complaint. Thus in the express cases no order was entered pending opportunity for express companies to file tariffs in accordance with suggestions made. But no case under any such circumstances can be said to have been discontinued until final disposition."

§ 1103. Satisfaction of complaint.

Where a complaint has been satisfied, an order requiring a continuance of present nondiscriminatory practices will not be considered necessary. 10 A complaint alleging undue discrimination against a city in that it was deprived of the benefit of joint rates cannot be sustained where the joint rates to the cities alleged to have been unduly preferred have been canceled. The Commission will usually permit a case to be settled through the readjustment of tariffs, showing considerable reductions in the rates complained of to the satisfaction of complaints. 12 Mere agreement of parties with respect to a rate, or mere subse

quent reduction of a rate is not a sufficient ground for a finding of unreasonableness or undue prejudice; for damages will not be awarded merely upon a showing that the carrier is willing to honor a claim. 13 Where a carrier is willing to award reparation on the basis of an out-of-line rate, which rate defendant is unwilling to maintain in the future, damages will be denied.14 And generally speaking when an adjustment is satisfactorily made to all parties in interest the case usually will be dismissed by the Commission. 15 And especially where an agreement is reached by the parties as to future rates, it will not be difficult to get the complaint dismissed. 16 The complaint having been satisfied by the restoration of the rate previously in force and the withdrawal of the rate complained of by tariff duly filed, will usually be on application of complainants, dismissed. 17

§ 1104. Conditions of granting reparation.

The awarding of damages does not necessarily follow the reduction of a rate. 18 Nor is fixing a rate for the future a prerequisite to the award of reparation. 19 No reparation will be granted, though the Commission finds that the rates are unreasonable, unless it be found that the rates were unreasonable at the time they were paid. 20 Nor where the injury for which reparation is asked occurred through the fault of the complainant.21 And where the claim for reparation has already been settled between the parties, the Commission will not generally take further action.22 Where a complaint as filed did not ask repara

13 Esson Granite Co. v. S. Ry., 26 I. C. C. 449.

14 Chaffin Coal Co. v. C., M. & St. P. Ry., 24 I. C. C. 321.

15 Watson Co. v. Lake Shore & M. S. Ry., 16 I. C. C. 124.

16 Montgomery Freight Bureau v. Western Ry. of Ala., 15 I. C. C. 199.

17 T. H. Bunch Co. v. Chicago, R. I. & P. R., 11 I. C. C. 377.

19 Minneapolis Steel & Machinery Co. v. C., M. & St. P. Ry., 26 I. C. C.

193.

19 Steinfeld & Co. v. I. C. R. R., 20 I. C. C. 12.

20 Grain Shippers' Ass'n v. Illinois Cent. R. R., 8 I. C. C. Rep. 158.

21 Gardner v. Southern R. R., 10 I. C. Rep. 342.

22 Stahl v. Oregon Ry. & Nav. Co.,

tion, and there being no evidence touching specific shipments, that feature of the case will not be considered, although a motion to that effect is noted in the record of the hearing.23 Reparation may be awarded in supplemental petition, although there is a general rule against awarding reparation piecemeal.24 It is to be emphasized that reparation on shipments previously made will not be ordered as a matter of course, even where the Commission finds that the ends of justice require the reduction of rate complained of for the future. 25

§ 1105. Scrutiny of reparation agreements.

27

So great is the fear that adjustments through the process of submitting to reparation may be used as a cover for discrimination that generally speaking a willingness to pay by the carrier is no ground for awarding reparation to the shipper. 26 The Commission cannot base its findings or apply to the past a privilege merely because the carrier is willing. The rule is, therefore, that no reparation will be awarded in the absence of specific proof as to each car involved.28 It is fundamental with the Commission that it will not award reparation in absence of proof sufficient to carry conviction of the wrong.29 Certainly if it appears that the award to which the carrier assents is to carry out a deal to give a rate lower than schedule, the Commission will not confirm it.30 For to sanction such a prior understanding would plainly be to create a cover for discrimination.31 And, therefore, as an evidence of good faith, if the

1 Int. Com. Rep. 314; Sayles v. New York, N. H. & H. R. R., 9 I. C. C. Rep. 492.

23 Atchison v. St. L., I. M. & S. Ry., 22 I. C. C. 131.

24 Partridge Co. v. B. & M. R. R., 19 I. C. C. 551.

25 Farmers' Warehouse Co. v. L. & N. R. R., 12 I. C. C. 457.

26 Pabst Brewing Co. v. Chicago, M. & St. P., 17 I. C. C. 359.

Cady Lumber Co. v. M. P. Ry., 19 I. C. C. 12.

28 Murphy Bros. v. New York C. & H. R. R. R., 17 I. C. C. 457. 29 Taylor v. Missouri Pacific Ry., 15 I. C. C. 165.

30 Crowell & S. Lumber Co. v. Texas & P. R. R., 17 I. C. C. 333.

31 Amour Car Line v. Southern Pacific, 17 I. C. C. 461.