66 The question debated is whether it vested in the Commission the power and the duty to fix rates, and the fact that this is a debatable question, and has been most strenuously and earnestly debated, is very persuasive that it did not. The grant of such a power is never to be implied. The power itself is so vast and comprehensive, so largely affecting the rights of carrier and shipper, as well as indirectly all commercial transactions, the language by which the power is given had been so often used, and was so familiar to the legislative mind, and is capable of such definite and exact statement, that no just rule of construction would tolerate a grant of such power by mere implication. Administrative control over railroads through boards or commissions was no new thing. It had been resorted to in England and in many of the States of this Union. In England, while control had been given in respect to discrimination and undue preferences, no power had been given to prescribe a tariff of rates. In this country the practice has been varying." The learned judge then discussed the State acts, examined the terms of the Interstate Commerce Act, and reached these conclusions: "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. Third. Incorporating into a statute the common-law obligation resting upon the carrier to make all its charges reasonable and just, and directing the Commission to execute and enforce the provisions of the act, does not by implication carry to the Commission, or invest it with the power to exercise, the legislative function of prescribing rates which shall control in the future. Fourth. Beyond the inference which irresistibly follows from the omission to grant in express terms to the Commission this power of fixing rates is 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 may be made, and requiring, as the only conditions of its action-First, publication; and, second, 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, strengthens the conclusion that the power to prescribe rates or fix any tariff for the future is not among the powers granted to the Commission. "These considerations convince us that under the Interstate Commerce Act the Commission has no power to prescribe the tariff of rates which shall control in the future, and therefore cannot invoke a judgment in mandamus from the courts to enforce any such tariff by it prescribed. "But has the Commission no functions to perform in respect to the matter of rates, no power to make any inquiry in respect thereto? Unquestionably it has, and most important duties in respect to this matter. It is charged with the general duty of inquiring as to the management of the business of railroad companies, and to keep itself informed as to the manner in which the same is conducted, and has the right to compel complete and full information as to the manner in which such carriers are transacting their business. And, with this knowledge, it is charged with the duty of seeing that there is no violation of the long and short haul clause; that there is no discrimination between individual shippers, and that nothing is done, by rebate or any other device, to give preference to one as against another; that no undue preferences are given to one place or places or individual or class of individuals, but that in all things that equality of right, which is the great purpose of the Interstate Commerce Act, shall be secured to all shippers. It must also see that that publicity which is required by section 6 is observed by the railroad companies. Holding the railroad companies to strict compliance with all these statutory provisions, and enforcing obedience to all these provisions, tends, as observed by Commissioner Cooley in Re Chicago, St. P. & K. C. Ry. Co., 2 Int. Com. Rep. 137, 2 I. C. C. 231, 261 (1888), to both reasonableness and equality of rate, as contemplated by the Interstate Commerce Act." Under the amendments of 1906, the Commission is given the power to make rates. See Chapter xxxiv. § 1040. Indication of basis for proper rate. But though it cannot prescribe rates, the Commission may after investigation find a particular rate to be unlawful, and prohibit the exaction of that rate, or find the time allowed for loading or unloading unlawful or, in other words, unreasonably small, and forbid the charging of demurrage at the expiration of that time and before the expiration of a reasonable time. Pennsylvania Millers' State Asso. v. Philadelphia & R. R., 8 Int. Com. Rep. 531 (1900). So it may require a carrier to desist from enforcing a classification of specified articles higher than the classification, which upon the facts is found to be lawful. This is not pre scribing a rate for the future. Classification determines the relation of rates as between commodities, not the rate itself, and when a commodity is transferred from a higher to a lower class, the revenues of the carrier are not necessarily diminished, since it may advance the rates applicable to those classes. Myer v. Cleveland, Cincinnati & St. L. Ry., 9 Int. Com. Rep. 78 (1901). As a result of its inability to prescribe rates, the Interstate Commerce Commission may determine in respect to the past what was reasonable and just, but as to rates found to be unreasonable, unjust, and unlawful can make no provision or order for their reduction which the courts are required to enforce or the carrier obliged to obey, except to notify the carrier to cease and desist from violation of the statute. Cary v. Eureka Springs Ry., 7 Int. Com. Rep. 286 (1897). It cannot correct wrongs caused by improperly adjusted rates over independent lines from connecting cities to a common destination, as it is without authority to prescribe a maximum and minimum rate. Savannah Bureau of F. & T. v. Charleston & S. Ry., 7 Int. Com. Rep. 458 (1897). But where the Commission finds the existing rate to be unjust, it will indicate the basis on which the rate should be. Milwaukee Chamber of Commerce v. Chicago, M. & St. P. Ry., 7 Int. Com. Rep. 481 (1898); Daniels v. Chicago, R. I. & P. Ry., 6 Int. Com. Rep. 458 (1895). CHAPTER XXXIV. PROCEDURE BEFORE THE COMMISSION. 1041. Provisions of the Statute. 1042. Amendments of 1906. TOPIC A-PROCEEDINGS ON ITS OWN MOTION. § 1043. Investigation by the Commission on its own motion. 1044. Investigation by order of Congress. 1045. Investigation as result of filing new tariff. 1046. Procedure on such investigation. TOPIC B-PROCEEDINGS ON COMPLAINT. § 1047. Procedure. 1048. Parties given opportunity to be heard. 1049. Place of hearing. 1050. Pleadings. TOPIC C-PROPER PARTIES. 1051. Person interested as complainant. 1052. Complaint by association. 1053. Board of Trade. 1054. State Railroad Commission. 1055. Complainant not coming with clean hands. 1056. Proper parties defendant. 1057. Necessary parties defendant. 1058. Supervening receivership. 1059. One of several joint parties. 1060. Parties must have an interest. 1061. Intervening parties. TOPIC DORDER OF PROCEDURE. § 1062. Default. 1063. Stay of proceedings. 1064. Continuance for settlement. TOPIC E EVIDENCE AND BURDEN OF PROOF. § 1065. Testimony on both sides should be introduced. 1066. Acts of Commission need not be proved. 1067. Rules of evidence. 1068. Privilege against self-crimination. 1069. Production of books and papers. 1070. Order to carrier to produce books. 1071. Methods of avoiding inconvenience of producing all books. 1072. Petitioner thus gets all material and proper evidence. 1073. Examination of witnesses upon prepared statements. 1074. Hearing held where books are kept. 1075. Adverse interest of witnesses not to be considered. 1076. Rights of parties must be preserved. 1077. Presumptions. 1078. Burden of proof. TOPIC F-FINDING OF THE COMMISSION. 1079. Dismissal when order unnecessary. 1080. Reparation. 1081. Proof of damage required. 1082. Conditions of granting reparation. 1083. Finding of Commission does not work an estoppel. 1084. Difference of parties. 1085. How far party may reopen case. 1086. New petition may be filed. 1087. Reopening a case for rehearing. 1088. Form and requisites of petition for rehearing. 1041. Provisions of the statute. Attendance of witnesses.-For the purposes of this Act the Commission shall have power to require, by supboena, the attendance and testimony of witnesses and the production of all books, papers, tariffs, contracts, agreements, and documents relating to any matter under investigation. Such attendance of witnesses, and the production of such documentary evidence, may be required from any place in the United States, at any designated place of hearing. And in case of disobedience to a subpoena the Commission, or any party to a proceeding before the Commission, may in |