accepted as prima facie evidence in the courts it is essential that such findings be made in conformity with the statute. Under the statute the Commission may proceed to enforce the provisions of the Act on complaint made by any person, corporation or association authorized to complain, and in the absence of such complaint the Commission must, if it is to enforce the law, proceed on its "own motion."

In raising the question of jurisdiction, by protest and motion, counsel assumed to be in some confusion because in the report of findings and conclusions of the Commission, it is said that the direction of the Senate to investigate was equivalent to a complaint made through that body that rates are excessive, and that such complaint was repeated through the Department of Agriculture. To avoid any such confusion counsel need only remember that 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 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.

One of the grounds on which jurisdiction is denied is based on the assumption of counsel 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 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 these 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 motion. 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 the Commission to institute inquiry on its own motion must present a petition to itself; and, if the course of procedure or rules of practice prescribed by the Commission apply to the investigations and proceedings commenced by the Commission on its own motion as well as to those not so commenced, then the Commission must not only petition to itself, but must itself verify such petition. In the matter under consideration the Commission or some member of it would first make oath to the facts showing the rates to be unreasonable, then proceed with the investigation to ascertain if the verification was true and whether the rates were or were not unreasonable. Such is not believed to be the method provided by the Act or the rules of the Commission for attaining the "ends of justice."

The Commission is authorized to institute inquiry on its own motion and in such inquiry " to investigate the matter in question." It has so determined when it has entered upon the investigation of such matters, and it may prosecute any inquiry necessary to such investigation by one or more of the Commissioners in any part of the United States. In any investigation the party to be affected must have notice. In any such matter as that we are now considering the party to be affected must have notice of what such party has done or omitted to do and which is challenged and which it is pro

posed to investigate. The notice given to the several companies named elsewhere in this proceeding was sufficient for this purpose and sufficient in law. It enclosed a copy of the preamble and resolution of the Senate, and was as follows:

"CHICAGO, March 12, 1890.

"You probably have information that the Senate has directed the Interstate Commerce Commission to make investigation of the reasonableness or otherwise of rates on food products from the north-west to the eastern markets.

"By direction of the Commission we expect to take testimony on the subject referred to at Sioux City, Omaha, Lincoln and other points not yet determined upon. We expect to commence to take testimony at Sioux City on Friday next and from there will go to other points. We advise you of this that you may be present and offer such testimony as you may desire.

"Respectfully,

(Signed)
(Signed)

W. R. MORRISON,
W. G. VEAZEY,

Commissioners."

This notice gave to the railroad companies information. that the reasonableness of their rates for carrying food prod ucts from the northwestern producing regions to markets east were challenged, that the question whether such rates were or were not reasonable was to be investigated, that by direction of the Commission two of the Commissioners would take testimony at Sioux City, Iowa, on the day named, to be followed by the taking of testimony at other places, and that on the taking of testimony at Sioux City, and wherever taken, opportunity will be afforded said companies to put in or offer testimony and to call or cross-examine witnesses. Full opportunity was thus afforded the several companies so notified to make justification of the reasonableness of their rates and protect their rights involved in the investigation. Most of the companies so notified improved this opportunity and were represented by attorney or some of their principal officers, or both, at the times and places of taking testimony, and on every occasion where testimony was taken attorneys on behalf of some of the companies attended and represented them. The same attorney now moving to dismiss, and who as

chairman of the Executive Board of the Interstate Commerce Railway Association appeared for that Association and asked time to examine the testimony and for argument, Aldace F. Walker, Esq., appeared for the several companies of that Association at the taking of testimony at Sioux City, Iowa, Lincoln, Nebraska, and Chicago, Illinois, and as the attorney for such companies put in testimony, cross-examined witnesses, tendered and examined witnesses, tendering among others, himself as a witness, and in his testimony March 12, said:

"In my judgment, under the conditions of the present winter the question of price obtainable for the food products of Kansas and Nebraska has no relation whatever to the rates of transportation charges thereon."

And again:

"If the state of the market were different, conditions might exist in which reductions in the transportation charge would benefit the producers of the grain. So long as the pressure to sell continues, and the market is weak, any attempt to regulate tariffs for the advantage of the producers will necessarily result in failure."

It thus appears that said companies were, by notice given, fully advised of the fact that the reasonableness of their rates were questioned and being tried, and this is confirmed by their admission made in support of the protest and motion to dismiss, that in "some cases" questions were asked by representatives of the roads and that "a very few witnesses were tendered and examined" by them. Probably more would have been tendered but for the fact that whenever practicable the Commissioners called the representative officers and managers of the several companies as witnesses and thus made their calling by the attorneys of the roads unne

cessary.

In view of the facts the Commission heard with some surprise the suggestion of counsel for the western roads that in the conduct of the investigation made, "No appearance was entered of record by counsel." The formal recording of such appearance is not deemed essential, and it is hardly possible that the suggestion will be repeated. Preparatory to taking.

testimony as to the reasonableness of the rates in question, and previous to the taking of testimony at Sioux City, the Commissioners, to ascertain the method of conducting business and making charges on western roads, heard at Chicago the testimony of J. N. Faithorn and J. W. Midgley, Chairmen, respectively, of the Western and Northwestern and of the Southwestern Divisions of the Western Freight Association, and, as such, the representatives of all the western roads to be affected by this proceeding. These witnesses are experienced, trained and skilled in railway methods, the manner, cost, and value of transportation, and fully competent to present facts with as slight disadvantage to the roads as the whole truth told by upright men will justify. It was not deemed necessary to give the roads other notice that the testimony of the representative heads of these freight associations was to be taken than was given in the request to appear and testify. Chairman Walker of the Interstate Railway Association was present to cross-examine, and his own statement and testimony was offered by him and was taken by the commissioners at the time and place where the testimony of Messrs. Faithorn and Midgley was taken.

Some testimony was taken by two of the commissioners in the same way at seaboard cities relating to ocean, lake and canal transportation, to railroad transportation between the Mississippi and the seaboard, and to the general questions. directed to be investigated by the preamble and resolution of the Senate.

In connection with the assumed irregularity of this proceeding counsel alleges "that evidence was used, obtained without the sanction of any oath." If this statement means that the schedules of rates filed with the Commission by the railroad companies, which never have the sanction of any oath, were used as evidence, the statement is accurate to that extent, and to that extent only.

In prosecuting the investigation as to whether the rates. between the seaboard and Chicago and points east of the