§ 1059. Damages to business generally. 1060. Nature of the order. 1061. How far party may reopen case. 1062. Finding of Commission does not work an estoppel. 1063. The two-year rule. 1064. New petition may be filed. 1065. Reopening a case for rehearing. § 1030. Provisions of the Act. The jurisdiction of the Commission to determine rates is to be seen in the advanced stage of its present development in section 15 of the Act which as successively amended now provides that whenever, after full hearing upon a complaint made as provided in section 13, or after full hearing under an order for investigation and hearing made by the Commission on its own initiative (either in extension of any pending complaint or without any complaint whatever), the Commission shall be of opinion that any individual or joint rates or charges whatsoever charged or collected by any common carrier or carriers subject to the provisions of the Act, or that any individual or joint classifications, regulations, conduct or practices whatsoever of such carrier or carriers are unjust or unreasonable or unjustly discriminatory, or unduly preferential or prejudicial or otherwise in violation of any of the provisions of this Act, the Commission is authorized and empowered to determine and prescribe what will be the just and reasonable individual or joint rate or rates, charge or charges, to be thereafter observed in such case as the maximum to be charged, and what individual or joint classification, regulation, or practice is just, fair, and reasonable, to be thereafter followed. Thereupon an order may be made that the carrier or carriers shall cease and desist from such violation to the extent to which the Commission finds the same to exist, and shall not thereafter publish, demand, or collect any rate or charge for such transportation or transmission in excess of the maximum rate or charge so prescribed, and shall adopt the classification and shall conform to and observe the regulation or practice so prescribed. All orders of the Commission, except orders for the payment of money, shall take effect within such reasonable time, not less than thirty days, and shall continue in force for such period of time, not exceeding two years, as shall be prescribed in the order of the Commission, unless the same shall be suspended or modified or set aside by the Commission, or be suspended or set aside by a court of competent jurisdiction. 1031. Orders of the Commission. By section 14 it is provided that whenever an investigation shall be made by the Commission, it shall be its duty to make a report in writing in respect thereto, which shall state its conclusions, together with its decision, order, or requirement in the premises; and in case damages are awarded such report shall include the findings of fact on which the award is made. All reports of investigations made by the Commission shall be entered of record, and a copy thereof shall be furnished to the party who may have complained, and to any common carrier that may have been complained of; and the Commission may provide for the publication of its reports and decisions in such form and manner as may be best adapted for information and use. By section 16 as now amended it is provided that if, after hearing on a complaint made as provided in section 13 of this Act, it shall be determined that any party complainant is entitled to an award of damages under the provisions of this Act for a violation thereof, the Commission shall make an order directing the carrier to pay to the complainant the sum to which he is entitled on or before a day named. Every order of the Commission shall then be served upon the designated agent of the carrier in the city of Washington or in such other manner as may be provided by law. It shall be the duty of every common carrier, its agents and employees, to observe and comply with such orders so long as the same shall remain in effect. The Commission shall be authorized to suspend or modify its orders upon such notice and in such manner as it shall deem proper. And after a decision, order, or requirement has been made by the Commission in any proceeding any party thereto may at any time make application for rehearing of the same, or any matter determined therein, and it shall be lawful for the Commission in its discretion to grant such a rehearing if sufficient reason therefor be made to appear. Applications for rehearing shall be governed by such general rules as the Commission may establish. No such application shall excuse any carrier from complying with or obeying any decision, order, or requirement of the Commission, or operate in any manner to stay or postpone the enforcement thereof, without the special order of the Commission. Any decision, order, or requirement made after such rehearing, reversing, changing, or modifying the original determination shall be subject to the same provisions as an original order. Topic A. Power to Order Changes § 1032. Power to fix rates originally denied. It was from the outset a hotly debated question whether the Commission had power under the Act as it originally read to make orders fixing rates to be charged in the future. The right to give such relief, if it found that the rates which were being charged were unreasonable, was vigorously asserted by the Commission at the beginning, as a power essential to its protection of the public from unjust exactions.81 But the opinion of the courts was practically unanimous against the contention that such a power was conferred upon the Commission by the Act.82 81 See Interstate Commerce Commission v. Lehigh Valley R. R., 5 Int. Com. Rep. 643; Interstate Commerce Commission v. Northwestern Ry., 5 Int. Com. Rep. 650; Interstate Commerce Commission v. Louisville & N. R. R., 5 Int. Com. Rep. 656 Interstate Commerce Commission v. Alabama Midland Ry., 5 Int. Com. Rep. 685. 82 See Interstate Commerce Commission v. Baltimore & O. R. R., 43 Fed. 37; Cincinnati, N. O. & T. P. Ry. v. Interstate Commerce It was pointed out as against the argument for the Commission, based largely upon public policy of a vague sort, that Congress by incorporating into a statute the commonlaw duty resting upon the carrier to make its charges reasonable and just, and directing the Commission to execute and enforce the provisions of the Act, did not by implication invest the Commission with the power to exercise the legislative function of prescribing rates which shall control in the future. Beyond the inference which irresistibly followed from the omission to grant in express terms to the Commission this power of fixing rates was the clear language of section 6, recognizing the right of the carrier to establish rates, to increase or reduce them, and prescribing the conditions upon which such increase or reduction might be made, and requiring, as the only conditions of its action, the publication and the filing of the tariff with the Commission. The grant to the Commission of the power to prescribe the form of the schedules, and to direct the place and manner of publication of joint rates, thus specifying the scope and limit of its functions in this respect, strengthened the conclusion that the power to prescribe rates or fix any tariff for the future was not among the powers granted to the Commission. § 1033. Decision of the Supreme Court. It was not finally decided by the Supreme Court of the United States until the case of Interstate Commerce Commission v. Cincinnati, New Orleans & Texas Pacific Railway 83 that, although the Commission had power to declare rates unreasonable, it had no power under the Act as it originally provided to fix the rate which the carrier should charge in the future. The masterly argument of Mr. Justice Brewer is still not without its signifi Commission, 162 U. S. 184, 40 L. ed. 935, 16 Sup. Ct. 700, 5 Int. Com. Rep. 391; Interstate Commerce Commission v. Cincinnati, N. O. & T. P. Ry., 167 U. S. 479, 42 L. ed. 243, 17 83 167 U. S. 479, 42 L. ed. 243, 17 Sup. Ct. 896. cance as to the course to be followed in statutory interpretation, as the beginning of his summing up of his conclusions will show: "We have therefore these considerations presented: First. The power to prescribe a tariff of rates for carriage by a common carrier is a legislative, and not an administrative or judicial, function, and, having respect to the large amount of property invested in railroads, the various companies engaged therein, the thousands of miles of road, and the millions of tons of freight carried, the varying and diverse conditions attaching to such carriage, is a power of supreme delicacy and importance. Second. That Congress has transferred such a power to any administrative body is not to be presumed or implied from any doubtful and uncertain language. The words and phrases efficacious to make such a delegation of power are well understood, and have been frequently used, and, if Congress had intended to grant such a power to the Interstate Commerce Commission, it cannot be doubted that it would have used language open to no misconstruction, but clear and direct." 84 § 1034. Powers established by later Amendments. Thus from the beginning of federal regulation of interstate carriers to the present time the sound theory upon which that supervision has proceeded has been that the primary right to conduct its business remains with the carrier, the Commission having secondary power to take action when revision is called for. As has just been seen, under the original Act the power of the Commission to give relief from unreasonable charges was held to go no further than to declare the existing rate unreasonable. But by the amendments of 1906 the Commission was given the further power, after finding the rate which was being charged unreasonable, to fix a reasonable rate for the future. It should be noted that, important as that 84 See also Interstate Commerce Commission v. Alabama Midland Ry., 168 U. S. 144, 42 L. ed. 414, 18 |