the Commission.85 Plainly complaints as to unreasonable rates are not included in this category. Hence in cases in which the court was asked to enforce orders which it found that the Commission was not authorized to issue, it did not itself undertake an investigation of the question of the reasonableness of the rate involved, but remanded that question for action by the Commission.86 "Primary interference of the courts with the administrative functions of the Commission is wholly incompatible with the Act." 869 The Commission is the tribunal instituted by the government to inquire primarily into the fact as to whether a discrimination exists. Until an inquiry is there made, and a finding and order had, the jurisdiction of a court of equity may not be invoked to restrain an alleged discrimination.se No court can enjoin the filing by a railway of an interstate rate on the ground that it is discriminatory in advance of action by the Commission.87 Since the rate filed with the Commission is the only legal rate, it is the standard of what is reasonable so far as courts and juries are concerned,88 and a shipper cannot maintain an action

85 Texas & Pac. Ry. v. Abilene Cotton Oil Co., 204 U. S. 426, 51 L. ed. 553, 27 Sup. Ct. 350; So. Ry. v. Tift, 206 U. S. 428, 51 L. ed. 1124, 27 Sup. Ct. 709; Louisville & N. Ry. v. Cook Brewing Co., 223 U. S. 70, 56 L. ed. 355, 32 Sup. Ct. 189; Gt. No. Ry. v. O'Connor, 232 U. S. 508, 58 L. ed. 703, 34 Sup. Ct. 380; Texas & Pac. Ry. v. American Tie & Timber Co., 234 U. S. 138, 58 L. ed. 1255, 34 Sup. Ct. 885; American Sugar Refining Co. v. D., L. & W. Ry., 200 Fed. 652; Jacoby v. Penn. Ry., 200 Fed. 989.

Even where the question involved is a constitutional question, if it is dependent upon provisions of the Interstate Commerce Act, it is subject to the precedent action of the Commission. Proctor and Gamble v.

U. S., 225 U. S. 282, 56 L. ed. 1091, 32 Sup. Ct. 761.

88 Cincinnati, N. O. & T. P. Ry. v. I. C. C., 162 U. S. 184, 40 L. ed. 935, 27 Sup. Ct. 948; Louisville & Nashville Ry. v. Behlmer, 175 U. S. 648, 40 L. ed. 309, 20 Sup. Ct. 208; Interstate Commerce Commission v. L. & N. Ry., 190 U. S. 273, 47 L. ed. 1047, 23 Sup. Ct. 687; United States v. M. C. Ry., 122 Fed. 544.

88a Baltimore & Ohio Ry. v. United States, 215 U. S. 481, 54 L. ed. 292, 30 Sup. Ct. 164.

86b United States v. Mich. Cent. Ry., 122 Fed. 544.

87 Columbus Iron & Steel Co. v. K. & M. Ry., 178 Fed. 261.

88 Van Patten v. C., M. & St. P. Ry., 81 Fed. 545.

at common law in a State or Federal court to recover for an excess of freights exacted on an interstate shipment if the rates charged were those filed with the Commission,89 nor can such an action be maintained in the Federal courts until application is first made to the Commission for the correction of the charge.90

§ 1136. Certain consequences of this doctrine.

Whatever may be the legislation of a State a carrier cannot be prosecuted for charging more than the rate fixed in its bill of lading, but must comply with the Federal law and charge the rate filed with the Commission.o1 The same result was reached when a carrier attempted by a special contract with a shipper to vary the rate filed with the Commission.92 Other cases in which it has been held that action by the Commission is a condition precedent to recourse to the courts involved suits for damages growing out of the granting of rebates to a shipper's competitors, 93 the refusal of a carrier to establish satisfactory through routes, 4 discrimination in the distribution of cars among shippers,95 the exaction of discriminatory charges on coal when loaded from wagons and not from tipples, a carrier's payment of discriminatory allowances to a shipper for transportation services rendered by him,97

96

89 Robinson v. B. & O. Ry., 222 U. S. 506, 56 L. ed. 288, 32 Sup. Ct. 113; Clement v. L. & N. Ry., 153 Fed. 979; American Union Coal Co. v. Railway Co., 159 Fed. 278.

90 Clement v. L. & N. Ry., 153 Fed. 979.

91 Gulf, Colorado & C. Ry. v. Hefley, 158 U. S. 98, 39 L. ed. 910, 15 Sup. Ct. 802.

92 Texas & Pacific Ry. v. Mugg, 202 U. S. 242, 50 L. ed. 1011, 26 Sup. Ct. 242.

93 Mitchell Coal & Coke Co. v. Penn. Ry., 183 Fed. 908.

94 United States v. Pacific & Arctic Co., 228 U. S. 87, 57 L. ed. 742, 33 Sup. Ct. 443.

95 Interstate Commerce Commission v. Ill. Cent. Ry., 215 U. S. 452, 54 L. ed. 280, 30 Sup. Ct. 155; Morrisdale Coal Co. v. Penn. Ry., 230 U. S. 304, 57 L. ed. 1494, 33 Sup. Ct. 938.

96 Robinson v. B. & O. Ry., 222 U. S. 506, 56 L. ed. 288, 32 Sup. Ct. 114.

97 Mitchell Coal & Coke Co. v. Penn. Ry., 230 U. S. 247, 57 L. ed. 1494, 33 Sup. Ct. 916.

2

discrimination growing out of the classification of commodities, and suits in equity to prevent the filing or enforcement of schedules alleged to be unreasonable.99 If, however, such a case be commenced without the necessary precedent application to the Commission, the court in remanding it for dismissal may stay the dismissal until the complainant has an opportunity to make such application, reserving meanwhile to the defendant the right to be heard on the defense of limitations as well as other defenses. If primary jurisdiction is vested in the Commission, the parties cannot by stipulation vest it in the courts. Although the Commission may have passed upon the question in other cases between other shippers and defendant carrier, nevertheless a shipper seeking reparation for violation of this ruling by a carrier must first apply to the Commission, as the case is not one of those which under section 9 may be brought originally either before the Commission or the courts. Nor does the fact that the allowance or discrimination was a past one relieve the shipper from primary recourse to the Commission for judgment as to its reasonableness. In all such cases the primary jurisdiction of the Commission will be respected by the courts. While in many cases they will review the action of the Commission, they will never anticipate it nor supplant it.

98 Texas & Pacific Ry. v. American Tie & Timber Co., 234 U. S. 138, 58 L. ed. 1255, 34 Sup. Ct. 884.

99 Great No. Ry. v. Kalispell Lumber Co., 165 Fed. 25; Atlantic Coast Line v. Macon Grocery Co., 166 Fed. 206; Columbus Iron & Steel Co. v. Kanawha & M. Ry., 171 Fed. 713; Houston Coal & Coke Co. v. N. & W. Ry., 171 Fed. 723; Columbus Iron & Steel Co. v. K. & M. Ry., 178 Fed. 261; Wickwire

Steel Co. v. N. Y. C. & H. R. Ry., 181 Fed. 316.

1 Mitchell Coal & Coke Co. v. Penn. Ry., 230 U. S. 247, 57 L. ed. 1494, 30 Sup. Ct. 916.

2 Mitchell Coal & Coke Co. v. Penn. Ry., 183 Fed. 908.

3 Howard Supply Co. v. C. & O. Ry., 162 Fed. 188; National Pole Co. v. C. & N. W. Ry., 200 Fed. 185.

4 Mitchell Coal & Coke Co. v. Penn. Ry., 230 U. S. 247, 57 L. ed. 1494, 30 Sup. Ct. 916.

§ 1137. The right of appeal to the courts.

While the courts will not usurp the functions of the Commission as the tribunal designated by law to make the primary determination of facts, and while the findings of the Commission in the discharge of this function are made prima facie evidence of the facts in subsequent judicial proceedings and are received by the courts with a presumption of truth, yet since the Commission acts as a legislative or administrative board and not judicially in reaching its findings, its action as to questions of law involved is not final, but is subject to judicial review.5 When an issue of fact only is concerned, the right of appeal depends altogether upon the will of the legislature; but when the issue is as to questions of law, the parties concerned cannot be deprived of their right to a judicial determination. This was expressly provided for by Congress in the Act creating the Commerce Court to which was given jurisdiction over cases brought to enjoin, set aside, annul, or suspend, in whole or in part, any order of the Commission. Upon the abolition of the Commerce Court this jurisdiction was vested in the district courts. Quite apart, however, from these statutory provisions, the constitutional requirement of due process of law can only be satisfied by granting to any person deprived of property by an order of the Commission an opportunity to have his day in court. This is particularly true of rate regulations, which so directly affect property rights, and which therefore raise a judicial question the final determination of which remains with the courts. A statute which made the decision of a legislature or commission conclusive as to rates, or which forbade recourse to the courts would be clearly invalid,' and a statute which

5 Mo., Kan. & Texas Ry. v. Interstate Commerce Commission, 164 Fed. 645; Mitchell Coal & Coke Co. v. Penn. Ry., 230 U. S. 247, 57 L. ed. 1494, 30 Sup. Ct. 916.

Bacon v. Rutland Ry., 232 U. S.

134, 58 L. ed. 538, 34 Sup. Ct. 283; Detroit & M. Ry. v. Michigan Railroad Commission, 235 U. S. 402, 35 Sup. Ct. 136.

7 Ex parte Young, 209 U. S. 123, 52 L. ed. 714, 28 Sup. Ct. 441; Mo.

sought to accomplish the same result indirectly, as by the infliction of outrageous penalties for disobedience to a commission's order pending appeal, would likewise be void. It is the substantial right of a judicial hearing that is protected, however the attack upon it may be veiled. But the mere failure to make explicit provision for an appeal from a commission to the courts is not construed as a denial of the right. Presumably it was intended that such a right should be enjoyed, and this presumption yields only to the plain provisions of the statute, which in turn must yield to the superior authority of the Federal Constitution. But the right to a judicial hearing as to the validity of orders of the Interstate Commerce Commission applies only to its affirmative orders. If the Commission denies the redress which the petitioner seeks at its hands, he has no remedy.10 This situation has led the Commission to say, "In doubtful cases the Commission will not overlook the fact that if it errs in construing the law against the complainant he has no relief, since no appeal will lie from the Commission's decision." 11 "As to the shipper, this tribunal is his one and only resort against injustice." 12 But cases in which the Commission denies relief, because not convinced that it should be given, should be distinguished from cases in which it denies relief because it holds that the relief asked for is not within its jurisdiction. In the former class of cases the decision of the Commission is final, but in the latter, if the Commis

Pac. Ry. v. Tucker, 230 U. S. 340, 57 L. ed. 1507, 33 Sup. Ct. 961.

8 Mo. Pac. Ry. v. Nebraska, 217 U. S. 196, 54 L. ed. 727, 30 Sup. Ct. 461; Chesapeake & Ohio Ry. v. Conley, 230 U. S. 513, 57 L. ed. 1597, 33 Sup. Ct. 985; Wadley Southern Ry. v. Georgia, 235 U. S. 651, 35 Sup. Ct. 214.

Louisville & Nashville Ry. v. Garrett, 231 U. S. 298, 58 L. ed. 229, 34 Sup. Ct. 48.

10 Proctor and Gamble v. United States, 225 U. S. 282, 56 L. ed. 1091, 32 Sup. Ct. 761; Hooker v. Knapp, 225 U. S. 302, 56 L. ed. 1069, 32 Sup. Ct. 769; Western N. Y. & P. Ry. v. Penn Refining Co., 137 Fed. 343.

11 Miner v. N. Y., N. H. & H. Ry., 11 I. C. C. 422.

12 In re Advances in Rates, Western Case, 20 I. C. C. 307.