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yond the power of Congress, even if any general language of the Act would bear so sweeping an interpretation, to grant unlimited power of making inquiry into affairs of the citizen. The right of personal security under the Constitution involves not merely protection of his person from assault, but exemption of his private affairs, books, and papers from the inspection and scrutiny of others. In the leading case of Harriman v. Interstate Commerce Commission,55 the Supreme Court held not long ago that the witnesses could not be required to answer questions put by the Commission except in connection with complaints for violation of the Act or with the investigation by the Commission of subjects that might have been made the object of complaint, these being the only matters contemplated by those sections of the Act which gave the Commission power to require testimony for the purposes of the Act. Nor could such sweeping powers be exercised by the Commission under the section requiring it to keep itself informed as to the manner and method in which the business of common carriers was conducted, or in connection with the enforcement of the requirement of section 20 concerning reports by carriers themselves. In the Louisville & Nashville case decided late in February of this current year the Supreme Court held that the Commission had under the Act no power to demand the access to the correspondence files of the railroads even in a general investigation of its affairs. The primary purpose of the Interstate Commerce Act is to regulate interstate business of carriers, and the secondary purpose, that for which the Commission was established, to enforce the regulations enacted by it; but the power to require testimony seems necessarily to be limited, as is usual in English-speaking countries, to investigations concerning a specific breach of the existing law. 56

55 211 U. S. 407, 53 L. ed. 252, 29 Sup. Ct. 115.

56 See Interstate Commerce Commission v. Reichman, 145 Fed. 225.

Topic D. Proceedings on Its Own Motion

§ 1016. Investigation by the Commission on its own motion. The Commission, without complaint or petition of an individual may investigate on its own motion the charges or other practices of any carrier subject to its jurisdiction. In such a case, before entering upon the investigation, it will give notice of the time and place of taking testimony, and afford opportunity for calling and crossexamination of witnesses. 57 Upon investigation if it thereupon appears that the conduct of the carrier is illegal, the Commission should use whatever power it has to correct the injustice shown. 58 Neither the requirement that complainants must prove the issues raised by competent testimony, nor the requirement that they must make out a prima facie case sufficiently clear and strong to require the Commission in the public interest to enter upon an investigation of its own, is satisfied by a comparison, without any other showing, of the rates complained of, with rates between points in other and distant localities where different physical, competitive and traffic conditions exist.59 But it should be noted that the Commission has claimed that in the public interest it has discretion at least to investigate matters cognizable in the courts,60 even if it can take no action thereon.

§ 1017. Investigation as a result of filing new tariff.

Investigations have from the beginning been ordered by the Commission upon the filing of tariffs. Any general advance in transportation charges it has always held to be a matter of great public concern, and it seemed especially appropriate that the Commission, in the discharge

57 Re Rates and Charges on Food Products, 3 Int. Com. Rep. 151, 4 I. C. C. 116.

58 In the Matter of Proposed Advances in Freight Rates, 9 I. C. C. Rep. 382.

59 Dallas Freight Bureau v. M. R. & T. R., 12 I. C. C. 427.

60 Joynes v. Pennsylvania R. R., 17 I. C. C. 361.

of its duty to keep informed touching the methods and practices of railway carriers subject to the Act to Regulate Commerce should ascertain the reason for advances. After a full investigation the Commission would state its conclusion; but since such general investigation of proposed advances in freight charges was in a manner ex parte, although the respondent carriers were fully heard through their traffic representatives, and in some instances through their attorneys, and since facts not brought out in the inquiry, with further discussion of the subject, might lead to a different conclusion, no order would be made. It was, however, threatened that, unless the rates be readjusted in accordance with the views expressed by the Commission, proceedings would be begun against the several lines, which would put directly in issue the rates involved.61 It should be noted that the Act as amended in 1910 gives the Commission power to inquire into the propriety of an advance, and it is the duty of the Commission to determine the reasonableness of the advances and their propriety as well."2

§ 1018. Investigation by order of Congress.

Investigations instituted as a result of a resolution of either house of Congress have been not infrequent. The Commission has been inclined to hold that its authority in these cases was derived from the permission given in the Act to proceed on its own motion. "Neither the Senate nor the Department of Agriculture is authorized to make any complaint, which under the statute the Commission is required to investigate. The complaint so made and repeated through the Senate and Agricultural Department was not a form of legal process, but an expression of discontent and dissatisfaction with existing rates. It imposed no duty, conferred no power. It was an admonition suggesting too much forbearance if not an omission

61 In re Advances in Freight Rates, 9 Int. Com. Rep. 382.

62 In re Advances on Barley, 24 I. C. C. 664.

of duty in respect to rates. As such it showed that the Commission did not of its own motion without probable good cause institute this inquiry and begin the investigation under the statute." 63 On the other hand, it is to be noted that, in instituting investigations based upon requests emanating from Congress, the Commission in framing its order will as a matter of fortifying its position recite the resolutions upon which it was based, as for example, it did most recently in reopening the inquiry into the financial operations of the New Haven Railroad System.64

§ 1019. Procedure upon such investigation.

Such investigation cannot be instituted by petition, since there is no petitioner; but it must be begun by some notice to the carrier investigated of the subject of inquiry. An investigation of this sort having been undertaken, counsel for the carriers attacked the jurisdiction of the Commission on the ground that the proceeding was not commenced and conducted in accordance with the Rules of Practice established by the Commission, and was therefore without authority of law. The Commission, however, held the procedure regular. The Act provides that the Commission may conduct its proceedings in such manner as will best conduce to the proper dispatch of business and to the ends of justice, and may from time to time make or amend such general rules or orders as may be requisite for the order and regulation of business before it. The Rules of Practice or orders which have been made in accordance with those provisions of the Act refer to proceedings commenced by parties authorized to complain and apply to the Commission by petition. Such rules or orders have no application to proceedings instituted by the Commission on its own mo

63 Re Rates and Charges on Food Products, 3 Int. Com. Rep. 151, 4 I. C. C. 116.

64 Financial Operations of the N. Y., N. H. & H. R. R., 31 I. C. C. 32.

tion.

These are commenced and conducted under the statute. The law requires the party complaining of anything done or omitted to be done by any common carrier to apply to the Commission by petition which shall briefly state the facts, and the rules made by the Commission for the regulation of its proceedings require the petition to be verified. If the statute requires the two proceedings, or the method of commencing the two proceedings provided for in section 13 of the Act, to be commenced in the same way, then there would be the absurdity that the Commission to institute inquiry on its own motion must present a petition to itself.65 It must be obvious in this, as in other matters, that as the Commission is an administrative body it must stand for the entire public and it must have in mind those who do not appear before it.66

§ 1020. Due process of administration.

Unless there is evidence before the Commission to show that the rates attacked were unreasonable, there is no jurisdiction to proceed further. The legal effect of evidence is a question of law; and a finding without evidence is beyond the power of the Commission. The value of evidence varies, and the weight to be given to it is peculiarly for the Commission. Notwithstanding this a finding without evidence of any sufficient character is a nullity. Such authority cannot be granted to any body, even if Congress could be conceived of as so designing. To confide such power to a Commission would be inconsistent with the fundamental principles of justice and an exercise of arbitrary power condemned by the Constitution.67 This means that in order to have what may pass as due process of law there cannot be substantial disre

65 Re Rates and Charges on Food Products, 3 Int. Com. Rep. 151, 4 I. C. C. 116.

66 In re Advance Rates, Eastern Case, 20 I. C. C. 243.

67 Atlantic C. L. Ry. v. Interstate

Commerce Commission, 194 Fed. 449.

See, generally, Interstate Commerce Commission v. Louisville & N. Ry., 227 U. S. 88, 33 Sup. Ct. 185.

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