against himself. 27 The constitutional guaranty of protection against being compelled in any criminal case to be a witness against one's self is sufficiently satisfied by the provision of the Act as it now reads. In what is now the leading case, 28 the Supreme Court said: "If, as was justly observed in the opinion of the court below, witnesses standing in Brown's position were at liberty to set up an immunity from testifying, the enforcement of the interstate commerce law or other analogous Acts, wherein it is for the interest of both parties to conceal their misdoings, would become impossible, since it is only from the mouths of those having knowledge of the inhibited contracts that the facts can be ascertained. While the constitutional provision in question is justly regarded as one of the most valuable prerogatives of the citizen, its object is fully accomplished by the statutory immunity, and we are therefore of opinion that the witness was compellable to answer." § 1119. Adverse interest of witnesses not to be considered. In proceedings like those before the Commission, which are judicial in their nature, and fairly governed by the rules and principles of law we have stated, it will not be said to be a sufficient excuse for making a preliminary order for a general production of books, papers, and documents, that petitioner is apprehensive that witnesses might be unfriendly, and refuse to answer proper questions, or to give proper information. It is not to be assumed in advance that any railroad officer or agent, any more than any other witness, will refuse to respond to any question put to him, unless upon the advice of the counsel of the company that the question is improper. The probability would seem to be that the testimony of witnesses (taken at the railroad offices) would be as fully brought out by 27 Counselman v. Hitchcock, 142 U. S. 547, 35 L. ed. 1110, 12 Sup. Ct. 195, 3 Int. Com. Rep. 816. 28 Brown v. Walker, 161 U. S. 591, 40 L. ed. 819, 16 Sup. Ct. 644, 5 Int. Com. Rep. 369. deposition, as at the open sessions of the Commission. 29 But it may well be doubted whether a railroad company can safely rely, as evidence in its own behalf, upon a report made and filed by it elsewhere.30 § 1120. Testimony on both sides should be introduced. It is not proper for railroad companies to withhold the larger part of their evidence from the Commission, and first adduce it in the Circuit Court in proceedings by the Commission to enforce its order. The purposes of the Act of Congress call for a full inquiry by the Commission in the first instance. The Commission is an administrative board, and the courts are only to be resorted to when the Commission prefers to enforce the provisions of the statute by a direct proceeding in the court, or when the orders of the Commission have been disregarded.31 If a production of the books is necessary in any case, the Commission would be disposed to hold the hearing, or at least order the testimony to be taken, at such place as would reduce the trouble and inconvenience, for it must be apparent that the mere labor of searching out the entries in these books and getting them together from the vast accumulations of a railroad office, running through long periods of time, would be enormous, and that their production at a far distant point, for the purposes of a hearing, in indefinite number and quantity, might be unjustly oppressive, as well as very seriously inconvenient.32 § 1121. Production of books and papers. An application for the compulsory production of books and papers 33 to the Commission for subpoena duces tecum 29 Bragg, Commissioner, in Rice v. Cincinnati, W. & B. R. R., 2 Int. Com. Rep. 584, 3 I. C. C. 186. 30 Seaboard Air L. R. Co. V. Florida, 203 U. S. 261, 27 Sup. Ct. R. (U. S.) 109, aff'g s. c. 48 Fla. 129, 37 So. 314, and 48 Fla. 150, 37 So. 658. 31 See Spartanburg Board of Trade v. Richmond & D. R. R., 2 Int. Com. Rep. 193, 2 I. C. C. 304. 32 Rice v. Cincinnati, W. & B. R. R., 2 Int. Com. Rep. 584, 3 I. C. C. 186. 33 Rice v. Cincinnati, W. & B. R. R., 2 Int. Com. Rep. 584, 3 I. C. C. 186. may be denied, as applicable to contracts and papers of third persons not before the Commission, on the ground of injustice that might be done such persons.34 The parties may take depositions, by consent, in advance of the hearing; or witnesses may be subpoenaed from the different companies proceeded against, and a notice served with the subpoena requiring the witness to furnish the published rates and tariffs of such company, for a specified period, and also requiring them to furnish statements of the actual charges made and car facilities furnished, during such period, to the persons named in the application, if different from the published tariffs and schedules. The Commission, having suggested these modes of procedure, has added that if a railroad company, or its officers, should refuse to furnish the proper evidence from its books in some such reasonable manner as is here indicated, it might then become necessary to resort to harsher proceedings, either by an examination of its books by a representative of the Commission, or by requiring the production of the books by compulsory process, and if need be, through the exercise of the authority of the courts, as provided in the statute.3 35 § 1122. Burden of establishing case. The complainant has the burden of establishing his case. Where a claim for reparation is made in a complaint of unreasonable railroad rates, the burden of proof is on complainant to prove the rates unreasonable.36 He has also the burden of showing what a reasonable rate would be, so as to show the excess.37 And so a railroad company which seeks to release itself from its agreement to deliver 34 Haddock v. Delaware, L. & W. R. R., 3 Int. Com. Rep. 302, 4 I. C. C. 296. 35 Commissioner, in Rice v. Cincinnati, W. & B. R. R., 2 Int. Com. Rep. 584, 3 I. C. C. 186. 36 Harding v. Chicago & A. R. R., 1 Int. Com. Rep. 375; Perry v. 37 Holmes v. Southern R. R., 8 I. C. C. Rep. 561. 38 goods for a specified freight rate, on the ground that the contract is illegal because the rate specified is less than that fixed by the Interstate Commerce Commission, has the burden of proving that the contract was necessarily unlawful, and not merely that it might have been so.3 The burden of proof of the unreasonableness of a rate may, therefore, be said to be clearly on the complainant.39 Where a complainant seeks to disturb a rate adjustment of long standing he should take upon himself the burden of establishing clearly the necessity for an investigation and the reasonableness of its demand. 40 In awards of reparation there must be that degree of certainty and satisfactory conviction in the mind and judgment of Commission as would be necessary under well-established principles of law as the basis for judgment in a court.1 The Commission cannot demand conclusive proof of unreasonableness; the preponderance of evidence is, of course, sufficient.42 Where rates were reduced at one point while no reduction was made at a related point, the burden would be upon the carrier to explain such adjustment.1 And the burden of proof is on the carrier to justify any departure from the general rule prescribed by the Act by showing that the circumstances and conditions attending the long and short hauls respectively are substantially dissimilar.44 § 1123. Burden of justifying advances. 41 43 Under the Act as amended in 1910 the burden is on the 38 Southern Pacific Co. v. Redding (Tex. Civ. App.), 43 S. W. 1061. 39 Loftus v. Pullman Co., 19 I. C. C. 102. 40 Taylor v. M. P. Ry., 15 I. C. C. 165. 41 Anadarko Cotton Oil Co. v. A., T. & S. Ry., 20 I. C. C. 43. 42 Thompson Lumber Co. v. I. C. C., 193 Fed. 682. 43 In re Advances on Cement, 24 I. C. C. 290. 44 Re Louisville & Nashville R. Co., 1 Int. Com. Rep. 278, 1 I. C. C. 31; Spartanburg Board of Trade v. Richmond & D. R. R., 2 Int. Com. Rep. 193, 2 I. C. C. 304; Re Chicago, S. P. & K. C. R. R., 2 Int. Com. Rep. 137, 2 I. C. C. 231; Raworth v. Northern Pacific R. R., 3 Int. Com. Rep. 857, 5 I. C. C. 234; Phillips v. Louisville & N. R. R., 8 I. C. C. Rep. 93. carrier to prove the reasonableness of advanced rates.45 Carriers must satisfy minds of Commission that advanced rates are just and reasonable; under English Act burden is on carrier to justify "the increase of the rate," but under our Act of 1910 the burden is on the carrier to show that the "increased rate" is reasonable.46 The burden is also on the carrier, under the fourth section as amended in 1910, to justify a deviation from the long-short-haul clause. 47 To justify a departure from the fourth section as amended the carrier must prove that by such deviation no provision of the Act will be violated and that no injustice will be done to the intermediate point. 48 The burden of proof being on the defendant, sufficient reason must be shown why articles should be advanced in official classification from second to first class. 49 And the withdrawal of through rates, leaving a higher combination in effect, casts the burden of justifying this advance upon the carriers.50 Likewise the withdrawal of proportional rates, leaving higher local rates in effect, casts the burden upon the carriers.51 And the burden of justifying increased minimum weight falls upon the carriers.52 carrier must prove that the advanced rate is reasonable and that it does not result in unjust discrimination or undue prejudice.53 The burden of proof to justify a suspended advance being upon the carriers, if they fail to sustain such burden the advance will not be permitted.54 45 In re Investigation of Advances in Rates on Grain, 21 I. C. C. R. 22; In re Advances in Rates on Locomotives and Tenders, 21 I. C. C. R. 103. 46 In re Advances in Rates, Eastern Case, 20 I. C. C. 243; In re Advances in Rates, Western Case, 20 I. C. R. 307. 47 City of Spokane v. N. P. Ry., 21 I. C. C. 400; Railroad Commission of Nevada v. S. P. Co., 21 I. C. C. 329. 48 Railroad Commission of Nevada v. S. P. Co., 21 I. C. C. 329. A 49 Davis Sewing Machine Co. v. P. C. C. & St. L. Ry., 22 I. C. C. 291. 50 In re Advances on Coal, 23 I. C. C. R. 518. 51 Wisconsin State Millers' Ass'n v. C., M. & St. P. Ry., 23 I. C. C. 494. 52 In re Advances on Potatoes, 23 I. C. C. 69. 53 In re Advances on Barley, 20 I. C. C. 664. 54 In re Advances on Iron and Steel Articles, 22 I. C. C. 486. |