past has paid less than a reasonable charge is no reason why he should not be awarded reparation in instances where unreasonable charges have been exacted from him. 23 In awarding reparation on the ground that an unreasonable rate was charged for the transportation of property for the Federal Government no account can be taken by the Commission of proper land-grant deductions, which may be determined between the parties as provided by law.24

§ 1059. Damages to business generally.

It is not sufficient to sustain a claim for reparation to allege a general injury to business. 25 A finding of general damages by the Commission would be mere opinion, not conclusive upon courts, to which, in any event, resort must be had for decision of such a question.26 The Commission feels that it has no jurisdiction to award damages for decline in market price of a commodity or for commissions for its sale. 27 No damages will, therefore, be allowed for loss of tenants and depreciation. 28 Damages due to inability to compete in common markets cannot become subject of reparation.29 Loss of contracts and sales, resulting from car-distribution discrimination, are not, it seems, for the Commission to assess.30 And the Commission is clear that exemplary damages are not within its province to grant.31 Damages will be denied a carrier not found to have unduly discriminated against complainant in distribution of cars.32 And likewise, damages will be

denied on a complaint where there is no measure of damage. 3

33

1060. Nature of the order.

An order of the Commission for payment is not judgment, nor does any lien result therefrom.34 Indeed, an award of reparation is not enforceable as such; it is only enforceable as the basis for court decree.35 No order will be entered pending the compliance of the carrier with views of Commission oftentimes.36 And sometimes rates will be exposed to analysis and criticism of the respondents before the issuance of a final order. 37 A practice which is bad only because discriminatory can always be remedied by withdrawing the benefit from the favored party or by extending it to the injured parties.38 An order to cease and desist from an unjust discrimination operates in the alternative; therefore the relation of rates may be prescribed but no definite rate fixed.39 Where the rates to one point are unduly low no valid objection can be found to the removal of the discrimination by an increase of such rates. But it is within power of Commission to end a discrimination as between points of origin by a reduction in the rate from a certain point that is discriminated against.41

40

§ 1061. How far party may reopen case.

It is generally true that the findings of the Commission will not conclude the unsuccessful party for all time. Conditions of transportation vary from time to time, and

33 Becker v. P. M. R. R., 28 I. C. C. 645.

34 Washer Grain Co. v. Missouri Pacific, 15 I. C. C. 147.

35 Anadarko Cotton Oil Co. v. A., T. & S. F. Ry., 20 I. C. C. 43.

36 In re Investigation of Advances in Rates on Grain, 21 I. C. C. 22. 37 In re Express Rates, 28 I. C. C. 132.

38 New York C. & H. R. R. R. v. Interstate Commerce Commission, 168 Fed. 131.

39 Freeman Lumber Co. v. St. L., I. M. & S. Ry., 19 I. C. C. 348.

40 In re Advances of Lumber, 28 I. C. C. 686.

41 Scott Paper Co. v. P. R. R., 26 I. C. C. 601.

rates should ordinarily be adjusted to such changed conditions, and it is possible, therefore, that the petitioners may be able to show that a change has taken place so that the contention which was formerly unsuccessful may now be reasonable and just.42 It is not to be understood, however, that the findings have no binding effect whatever. If a matter has once been investigated by the Commission and a finding made, the same question will not afterwards be differently decided unless new evidence is presented, even though it arises upon the complaint of other parties.43 Questions coming before this body are not of a character that the decision in one case is necessarily controlling in all similar cases. Its decisions can hardly be said to have the effect of an estoppel, nor is there the same reason for applying the maxim stare decisis which exists in courts of law. In the absence of some showing that new conditions have intervened, or that the effects of the original holding have been other than were anticipated, we think that that case must control the disposition of this.44 And upon the precise point litigated and decided the finding may be a complete bar to further proceedings before the Commission. The defendant, if the finding is against him, may disregard it, and the question must then be taken to the courts, where the finding is not binding. If the finding is against the complainant it is final; and in any case if the complainant has his option of suit or complaint to the Commission, his appeal to the Commission bars him from suit. So the final judgment in a suit or proceeding before the Interstate Commerce Commission, unreversed and remaining of record in full force and effect, is a bar to an action in the United States Circuit Court brought to recover damages from

42 Rice v. Western N. Y. & P. R. R., 2 Int. Com. Rep. 496, 3 I. C. C. 87; Interstate Commerce Com. v. Louisville & N. R. R., 73 Fed. 410, 5 Int. Com. Rep. 656.

43 Railroad Commissioners v. A., T. & S. F. Ry., 8 I. C. C. Rep. 304.

44 Kauffman Milling Co. v. Mo. Pac. Ry., 4 I. C. C. 417, 3 Int. Com. Rep. 400.

the same violation of violation of the Act to Regulate Com

§ 1062. Finding of Commission does not work an estoppel.

46

The proceedings before the Commission not being strictly judicial, the doctrine of estoppel by judgment cannot properly be applied to the findings of the Commission. The doctrine of estoppel of record does not seem applicable to the case under consideration. It is applied to the record and judgment of both general and inferior courts. The Commission is not a court. It is a special tribunal whose duties though largely administrative are sometimes semi or quasi-judicial. It is required to investigate and report. The law creating the Commission does not mention its final act as a judgment. It renders no judgment, enters no decree. From these considerations it is not believed that the rule of estoppel by record, at all times technical in character, can be invoked by the defendants. 47 The whole scope and spirit of the Act seems to stamp order of the Commission as in no sense final in the sense that the judgment of a court is final, except where the parties impressed by the wisdom and justice of the order acquiesce therein in cases like those here under consideration. 48 Even if the doctrine of estoppel by record can ever be applied to the findings of the Commission, it can only be done when the parties are the same. who appeared before the Commission in a representative capacity as a member of a committee of a complaining mercantile society, in proceedings which were dismissed, is not thereby estopped in a similar case brought by him as an individual. 49

45 Riddle v. New York, L. E. & W. R. R., 3 Int. Com. Rep. 230. 46 3 Int. Com. Rep. 830, 5 I. C. C. 166.

47 Providence Rubber Co. v. Good

One

year, 76 U. S. 9 Wall. 788, 19 L. ed. 566.

48 94 U. S. 673, 24 L. ed. 168.

49 Toledo Produce Exch. v. Lake Shore & M. S. R. R., 3 Int. Com. Rep. 830, 5 I. C. C. 166.

§ 1063. The two-year rule.

Orders of the Commission, by a provision in the Act, may continue in force for a period not exceeding two years.50 But conversely orders with respect to rates are not conclusive beyond the period of two years.51 Moreover, Congress left the door open to the Commission to suspend or modify or set aside any of its orders at any time within the two years.52 But under the Act an order of the Commission shall remain in force for two years unless a different time is designated. 53 A contention that if the Commission concludes a rate to be unreasonable it thereby automatically awards reparation covering the statutory period of two years prior to date of complaint, not sustained.5 Two years from date the carrier may voluntarily put the old rate in force.55 As a practical matter the advantage of submitting to a settlement in informal proceedings may be noted, as according to what is understood to be the current practice of the Commission, the order is made for one year, whereas in formal proceedings it will almost invariably run for two years.

54

§ 1064. New petition may be filed.

When new conditions have arisen since the original investigation and report of the Commission neither the parties, as has been seen, nor others, are bound by the former finding. It follows that the new conditions need not be presented in a petition for a rehearing; a new petition may be filed, and this would seem to be the better course. This is clearly true where the parties to the new application were not parties to the former complaint; the new parties should file a new complaint, and if upon this new complaint it should appear that any conclusion in the former case

50 Douglas & Co. v. C., R. I. & P. Ry., 21 I. C. C. 97.

51 National Hay Ass'n v. M. C. R. R., 19 I. C. C. 34.

52 National Hay Ass'n v. M. C. R. R., 19 I. C. C. 34.

53 N. Y. C. & H. R. R. v. Int. Com. Com., 168 Fed. 131.

54 New Pittsburg Coal Co. v. H. V. Ry., 26 I. C. C. 121.

55 Thely Grain Co. v. F. S. & W. R. R., 16 I. C. C. 28.