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incentive to competition, it was within the prohibition of the Act of Congress.53 The mere fact that an advance in rates is the product of an unlawful combination by interstate carriers will not justify the Commission in setting aside such rate if not unreasonably high.54 At all events, power to deal with pooling by proceedings directed against it was not given to the Commission when pooling was made illegal by the Act originally."

§ 985. Certain agreements held valid.

The Commission has held that it is at least doubtful whether section 5 of the Act applies to a practice whereby the transportation of immigrants from Atlantic ports westward is divided between the carriers in agreed proportions based upon the proportion of the domestic passenger traffic done by each line, where such a practice cannot be made effective in respect to any other class of passenger business, and the immigrants are carried at domestic published rates, and the arrangements adopted by the carriers in connection with the immigration authorities of the United States have efficiently promoted the protection and greatly improved the treatment and comfort of immigrants.56 Certain transcontinental carriers adopted as part of an agreement for a through rate from California to the East, for oranges and other citrus fruits, a rule under which the right of routing beyond its own terminal is reserved to the initial carrier as the condition of guaranteeing the through rates to the shipper. The initial carrier promised fair treatment to the connecting lines, and carried out such promise, but there was no agreement to give any specific amount of tonnage to any particular connecting line. The rule was intended to break up rebating by the connecting lines, and, in its practical

53 New England Investigation, 27 I. C. C. 560.

54 Tifft v. Southern Ry. Co., 10 I. C. C. Rep. 548.

55 China & Japan Trading Co. v. Georgia R. Co., 12 I. C. C. 236.

56 Re Transportation of Immigrants from New York, 10 I. C. C. Rep. 13.

operation, the actual routing was generally conceded to the shipper, and his requests to divert shipments en route were usually allowed. It was held by the Supreme Court that this was not a pooling of freights such as is forbidden by the Act.57 In a later proceeding as to passenger arrangements for handling certain matters of administration jointly, it was held that the manner of dividing validation fees did not constitute violation of section 5.58

57 Southern Pacific Co. v. Interstate Commerce Commission, 200 U. S. 536, 26 Sup. Ct. 330.

58 Riter v. O. S. L. R. R., 19 I. C. C. R. 443.

BOOK IV

POWERS OF THE COMMISSION

CHAPTER XXI

SUPERVISORY POWERS OF THE COMMISSION

§ 990. Provisions of the Act.

991. Power to investigate rates.

Topic A. Bases of Commission Regulation

§ 992. Regulation of rates by the State.

993. Ways in which power is exercised.

994. Power to pass on reasonableness of rates.

995. Duty of the courts to pass on reasonableness of rates.

996. Fixing rates by administrative commissions.

997. Nature of their powers.

998. Delegation of rate-making power.

999. Limitations of the principle.

Topic B. Administrative Functions of the Commission

§ 1000. Nature of the Commission.

1001. Functions of the Commission.

1002. Basis of its powers.

1003. Limitations upon its jurisdiction.

1004. Extent of its supervision.

1005. Visitorial powers in general.

1006. What supervision implies.

1007. Status of the Commission.

Topic C. Authority to Investigate Conditions

§ 1008. Investigation by the Commission.

1009. Limitation of its scope.

1010. Jurisdiction of the federal Commission.

1011. Extent of its powers.

1012. Powers of State commissions.

1013. Proceedings belonging in the courts.

1014. Testimony compelled in quasi-judicial proceedings.

1015, Summoning witnesses in general investigations.

Topic D. Proceedings on Its Own Motion

§ 1016. Investigation by the Commission on its own motion.

1017. Investigation as a result of filing new tariff.

1018. Investigation by order of Congress. 1019. Procedure upon such investigation. 1020. Due process of administration.

1021. Jealous protection of substantial rights.

1022. Constitutional limitations upon the federal government. 1023. Recognition of these by the Commission.

§ 990. Provisions of the Act.

The Interstate Commerce Commission provided for in section 24 in 1906, is composed of seven commissioners, who are appointed by the President for seven-year terms, by and with the advice and consent of the Senate. Any commissioner may be removed by the President for inefficiency, neglect of duty, or malfeasance in office. Not more than four of the commissioners shall be appointed from the same political party according to section 11.. No person in the employ of or holding any official relation to any common carrier subject to the provisions of this Act, or owning stock or bonds thereof, or who is in any manner pecuniarily interested therein, shall enter upon the duties of or hold such office. The Commissioners shall not engage in any other business, vocation, or employment. No vacancy in the Commission shall impair the right of the remaining commissioners to exercise all the powers of the Commission. The principal office of the Commission is at Washington, where its general sessions are held; but whenever the convenience of the public or the parties may be promoted or delay or expense prevented thereby, the Commission may hold special sessions in any part of the United States. And it may, by section 19, by one or more of the commissioners, prosecute any inquiry necessary to its duties, in any part of the United States, into any matter or question of fact pertaining to the business of any common carrier subject to the provisions of this Act. By section 12 the Commission shall have authority to inquire into the management of

the business of all common carriers subject to the provisions of this Act, and shall keep itself informed as to the manner and method in which the same is conducted, and shall have the right to obtain from such common carriers full and complete information necessary to enable the Commission to perform the duties and carry out the objects for which it was created. Furthermore, the Commission is authorized and required to execute and enforce the provisions of this Act; and, upon the request of the Commission, it shall be the duty of any district attorney of the United States to whom the Commission may apply to institute in the proper court and to prosecute under the direction of the Attorney General of the United States all necessary proceedings for the enforcement of the provisions of this Act and for the punishment of all violations thereof.

§ 991. Power to investigate rates.

Whenever there shall be filed with the Commission any schedule stating a new individual or joint rate, fare, charge, or classification, or regulation or practice affecting any rate or charge, the Commission shall have authority, either upon complaint or upon its own initiative without complaint, at once, and if it so orders, without answer or other formal pleading by the interested carrier or carriers, but upon reasonable notice, to enter upon a hearing concerning the propriety of such rate, fare, charge, classification, regulation, or practice. Pending such hearing and the decision thereon, the Commission, upon filing with such schedule and delivering to the carrier or carriers affected thereby a statement in writing of its reasons for such suspension, may suspend the operation of such schedule and defer the use of such rate, fare, charge, classification, regulation, or practice, but not for a longer period than one hundred and twenty days. After full hearing, whether completed before or after such changes go into effect, the Commission may make such order in reference thereto

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