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The Appellate Division, when asked to reverse the action of the N. Y. Board of Railroad Commissioners in granting a certificate of convenience and necessity as against the weight of evidence, will apply the same rules as to a motion to set aside a verdict in an action in the Supreme Court.-People ex rel. L. I. R. Co. v. Board of R. R. Comrs., 42 App. Div. (N. Y.) 366, 59 N. Y. Supp. 144.

The denial by the N. Y. Board of R. R. Commissioners of the petitioner's application for a certificate of necessity under N. Y. R. R. L., § 59, was the exercise of a power largely discretionary in its character which the legislature of this state had vested in a body created for a special purpose and composed of men peculiarly qualified by experience to deal with the vexatious problems arising out of the ever increasing demand for better and more adequate transportation. And while this court has been expressly empowered to review the action of the commissioners in refusing to grant such a certificate as was asked for in this case, yet it has held in every instance where a review has been had, that for the reason above stated their determination must be treated in the same manner as that of any other subordinate judicial tribunal whose judgments are subject to review, which is equivalent to saying that their conclusion must be respected and sustained unless it be made clearly and affirmatively to appear that it was founded upon erroneous legal principles, or that in reaching the same the Commissioners proceeded contrary to the clear weight of evidence, or that they abused the discretion vested in them and arbitrarily refused to issue the certificate asked for.- Matter of Auburn & W. R. Co., 37 App. Div. (N. Y.) 162, 55 N. Y. Supp. 895; Matter of Depew & S. W. R. Co., 92 Hun (N. Y.), 406, 36 N. Y. Supp. 991; Matter of Amsterdam, J. & G. R. Co., 86 Hun (N. Y.), 578, 33 N. Y. Supp. 1009; Matter of New Hamburg & P. C. R. Co., 76 Hun (N. Y.), 76, 27 N. Y. Supp. 664; People v. Ulster & D. R. Co., 58 Hun (N. Y.), 266, 12 N. Y. Supp. 303; affd. 128 N. Y. 240, 28 N. E. 635.

A rate fixed by legislative authority is presumptively reasonable.Beardsley v. N. Y. L. E. & W. R. Co., 15 App. Div. (N. Y.) 251, 44 N. Y. Supp. 175, affg. s. c. 17 Misc. (N. Y.) 256, 40 N. Y. Supp. 1077; revd. on other grounds, 162 N. Y. 230, 56 N. E. 488.

In contesting a decision of the N. Y. Board of Railroad Commissioners before the Appellate Division, the burden is on the petitioner to show affirmatively that the Board erred in its determination, and the Board is to be credited with some technical knowledge the court is not presumed to possess.- Matter of Kings, Q. & S. R. Co.,, 6 App. Div. (N. Y.) 241, 39 N. Y. Supp. 1004.

The burden is on the contesting party to show that the decision of the Board of Railroad Commissioners, in granting a certificate of necessity to one of two rival applicants, was against the clear weight of evidence. – People ex rel. Depew & S. W. R. Co. v. Board of R. R. Comrs., 4 App. Div. (N. Y.) 259, 38 N. Y. Supp. 528.

Regulations made by state railroad commissioners to prevent unjust discrimination, are prima facie reasonable.- State ex rel. Ellis v. Atlantic C. L. R. Co., Fla., 41 So. 705.

Rates fixed by a state commission are not conclusive as against judicial inquiry, but are competent and adequate evidence in the absence of countervailing proof.- Pensacola & A. R. Co. v. Florida, 25 Fla. 310, 5. So. 833, 3 L. R. A. 661n.

The burden of proving that rates fixed by a commission are unreasonable is on the carrier.- Southern R. Co. v. Atlanta Stove Works, 128 Ga. 207, 57 S. E. 429.

A rate fixed by a city pursuant to statutory authority will be presumed to be reasonable until its unreasonableness is shown, and the burden of showing the rate to be unreasonable rests upon the carrier.Chicago U. Traction Co. v. City of Chicago, 199 Ill. 579, 65 N. E. 470. A statute which creates a commission with power to make a schedule of maximum rates which shall not be conclusive as to the reasonableness of the charges, but only prima facie evidence of their reasonableness, is valid, as judicial inquiry is not thereby cut off.- Chicago, B. & Q. R. Co. v. Jones, 149 Ill. 361, 37 N. E. 247, 24 L. R. A. 141.

Every presumption is in favor of the action of a commission, and the burden is on the carrier to show each action was contrary to law.― Steenerson v. Gt. Northern R. Co., 69 Minn. 353, 72 N. W. 713.

Under the Minnesota statute giving a commission power to fix rates, the rates so fixed are not merely prima facie equal and reasonable, but final and conclusive as to what are lawful or equal and reasonable charges. - State v. Ch. M. & St. P. R. Co., 38 Minn. 281, 37 N. W. 782; revd. 134 U. S. 418, 10 Sup. Ct. R. (U. S.) 462, 702.

Rates fixed by a state commission are prima facie but not conclusively correct. Stone v. N. J. & C. R. Co., 62 Miss. 646.

A city ordinance required that between certain hours a sufficient number of street cars should be run to provide a seat for every passenger from whom a fare was demanded.— Held, that in the absence of proof that the ordinance is under all circumstances unreasonable and oppressive, it should be permitted to stand, to be enforced except in cases where it may be made affirmatively to appear that the operation of its provisions is unreasonable or oppressive.- North Jersey St. R. Co. v. Jersey City, - N. J. —, 67 Atl. 1072.

[2]

Prima facie weight of findings of fact.

In any action to enforce an order of the Interstate Commerce Commission, in case of conflicting evidence a probative force must be attributed to the findings of the Commission, which, in addition to "knowledge of conditions, of environment and of transportation relations," has

had the witnesses before it and has been able to judge of them and their manner of testifying.— Illinois Cent. R. Co. v. Interst. Com. Commission, 206 U. S. 441, 27 Sup. Ct. R. (U. S.) 700, affg. s. c. 10 Inters. Com. R. 505.

The findings of Interstate Commerce Commission are prima facie true, and the court will ascribe to them the strength due to the judgments of a tribunal appointed by law and especially qualified by experience.Illinois Cent. R. Co. v. Interst. Com. Commission, 206 U. S. 441, 27 Sup. Ct. R. (U. S.) 700.

The Interstate Commerce Act gives prima facie effect to the findings of the Interstate Commerce Commission, and when those findings are concurred in by the Circuit Court of the United States, the Supreme Court will not interfere unless the record establishes that clear and unmistakable error has been committed.- Cincinnati, H. & D. R. Co. v. Interstate Com. Commission, 206 U. S. 142, 27 Sup. Ct. R. (U. S.) 648.

Where the facts as to an order of a state commission are settled by the state court, such findings are conclusive upon the Supreme Court of the United States.- Gulf, C. & S. F. R. Co. v. Texas, 204 U. S. 403, 27 Sup. Ct. R. (U. S.) 360, affg. s. c. 97 Tex. 274, 78 S. W. 495.

Where the decision of questions of fact is committed by Congress to the judgment and discretion of a head of a department, his decision thereon is conclusive; and even upon mixed questions of law and fact, or of law alone, his action will carry with it a strong presumption of its correctness, and the courts will not ordinarily review it, although they may have the power, and will occasionally exercise the right of so doing.Bates Co. v. Payne, 194 U. S. 106, 24 Sup. Ct. R. (U. S.) 595.

The findings of fact in the decisions of the Interstate Commerce Commission are prima facie evidence of the matters stated therein; and the conclusions of the commission based upon such findings are presumed to be well founded and correct, and they will not be set aside unless error clearly appears.- Interst. Com. Commission v. L. & N. R. Co., 102 Fed. 709; Interst. Com. Commission v. L. & N. R. Co., 73 Fed. 409; Interst. Com. Commission v. C. N. O. & T. P. R. Co., 56 Fed. 925.

In an application to the Circuit Court by the Interstate Commerce Commission for judicial enforcement of an order of the Commission directing certain carriers to desist from charging a less rate for a longer than for a shorter haul, the findings of fact reported by the Commission are not conclusive, but are merely prima facie evidence, subject to being modified or disproved by other evidence offered in court at the hearing.- Interst. Com. Commission v. A. T. & S. F. R. Co., 50 Fed. 295; appeal dismissed, 81 Fed. 1005, 149 U. S. 264, 13 Sup. Ct. R. (U. S.) 837.

In a proceeding by the Interstate Commerce Commission under Interst. Com. Act, § 16, to enforce an order, the findings of fact by the Commission are merely prima facie evidence of the facts therein stated, the rule being the same whether the proceeding is instituted. by the Commission or by an individual.— Interst. Com. Commission v. Lehigh V. R. Co., 49 Fed. 177.

The findings and reports of the Interstate Commerce Commission are merely given the weight of prima facie evidence, in proceedings to enforce its orders.- Kentucky & I. Bridge Co. v. L. & N. R. Co., 37 Fed. 567, 2 L. R. A. 289, appeal dismissed, 149 U. S. 777, 13 Sup. Ct. R. (U. S.) 1048.

The statutes of Minnesota provide for an appeal from orders of the Railroad and Warehouse Commission.- Held, that in a case where no appeal is taken, the order objected to is not conclusive on the facts.State v. Minneapolis & St. L. R. Co., 80 Minn. 191, 83 N. W. 60.

Findings of fact by a state railroad commission are prima facie evidence, but in case the truth thereof is denied, the issue must be determined like any other controversy of fact.- State v. Fremont E. & M. V. R. Co., 23 Neb. 117, 36 N. W. 305.

An act making certain facts prima facie evidence of certain other facts is unconstitutional.- State v. Beswick, 13 R. I. 213.

The question of the reasonableness of rates or regulations is not a question whether they are confiscatory and take private property without just compensation, for that is the question of constitutionality. Their reasonableness is to be determined as in any other class of litigation, except that the commission's findings of fact are conclusive.Railroad Commission v. Houston & T. C. R. Co., 90 Tex. 340, 38 S. W. 750.

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A lawful order of the Interstate Commerce Commission, directing certain railroad companies to cease making specified unlawful freight charges under a joint traffic agreement is binding on the successor of one of such companies, although the name of such successor does not appear in the order.- Behlmer v. L. & N. R. Co., 83 Fed. 898, revg. s. c. 71 Fed. 835; revd. on other points, 175 U. S. 648, 20 Sup. Ct. R. (U. S.) 209.

A lawful order of the Interstate Commerce Commission against discrimination by a railroad, is binding upon the latter's successors.Inters. Com. Commission v. W. N. Y. & P. R. Co., 82 Fed. 192.

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The Interstate Commerce Commission may make an order and then suspend it pending indicated action by the carrier.- Board of Trade of

Chattanooga v. E. Tenn. V. & G. R. Co., 2 Inters. Com. R. 798, 3 Inters. Com. R. 106, 213, 5 Inters. Com. R. 546.

[5] Judicial review of orders

In general.

Review of determination as to granting of certificate of public convenience and necessity,- see post, § 53, note [6].

Review of proceedings of former N. Y. Board of Railroad Commissioners in granting an application to discontinue a station,—see post, § 80, note.

The decisions of the Interstate Commerce Commission are subject to review if that body excluded "facts and circumstances that ought to have been considered," but they will not, after they are concurred in by the Circuit Court and the Circuit Court of Appeals, be reversed unless the record establishes that clear and unmistakable error has been committed.— Illinois Cent. R. Co. v. Interst. Com. Commission, 206 U. S. 441, 27 Sup. Ct. R. (U. S.) 700.

The courts may look through and behind mere forms, and interfere whenever necessary, for the protection of private rights against an illegal, arbitrary exercise of governmental power.- West Chicago St. R. Co. v. Chicago, 201 U. S. 506, 26 Sup. Ct. R. (U. S.) 518.

Whether, in a particular case, there has been an undue preference or discrimination, is a question of fact depending on the matters proved in each case, and the Circuit Court has jurisdiction to review the findings of the Commission on these questions of fact, giving effect to those findings as prima facie evidence of the facts and conclusions set forth therein.- Interst. Com. Commission v. Ala. Mid. R. Co., 168 U. S. 144, 18 Sup. Ct. R. (U. S.) 45, affg. s. c. 74 Fed. 715, 69 Fed. 227.

A legislature has the power to fix rates, and the extent of judicial interference should be protection against unreasonable rates. Courts should be careful not to declare legislative acts unconstitutional upon agreed and general statements and without the fullest disclosure of all material facts. By means of a friendly suit, a party beaten in the legislature should not be encouraged to transfer to the courts an inquiry as to the constitutionality of legislation he was unable to argue successfully against in the legislature. Surely, before the courts are called upon to adjudge an act of the legislature fixing the maximum passenger rates to be unconstitutional, on the ground that its enforcement would deprive the stockholders of dividends on their investment and the bondholders of interest on their loans, the courts should be fully advised as to what is done with the receipts and earnings of the company, for if so advised, it might clearly appear that a prudent and honest management would, within the rates prescribed, secure to the bondholders their interest and to the stockholders reasonable divi

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