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States v. California, 332 U. S. 19, 26-29. Nothing in the Interstate Commerce Act indicates a congressional purpose to amend prior statutes which had imposed primary responsibility on the Attorney General to seek judicial redress for the Government.

Although the formal appearance of the Attorney General for the Government as statutory defendant does create a surface anomaly, his representation of the Government as a shipper does not in any way prevent a full defense of the Commission's order. The Interstate Commerce Act contains adequate provisions for protection of Commission orders by the Commission and by the railroads when, as here, they are the real parties in interest. For, whether the Attorney General defends or not, the Commission and the railroads are authorized to interpose all defenses to the Government's charges and claims that can be interposed to charges and claims of other shippers. In this case the Commission and the railroads have availed themselves of this statutory authorization. They have vigorously defended the legality of the allowances and the validity of the Commission order at every stage of the litigation.

Third. 28 U. S. C. (1946 ed.) § 41 (28)3 provides that "The district courts shall have original jurisdiction Of cases brought to enjoin, set aside, annul, or suspend in whole or in part any order of the Interstate Commerce Commission." The legal consequences of this order if upheld will finally relieve the railroad of any obligations to the Government on account of the alleged unlawful

3 The substance of 28 U. S. C. § 41 (28) of the 1946 United States Code now appears as § 1336 of the 1948 Code. The provision for judicial review of Interstate Commerce Commission orders first appeared in 1910 in an Act creating the Commerce Court. 36 Stat. 539. Congress abolished the Commerce Court in 1913 and transferred to district courts the Commerce Court's jurisdietion to review Commission orders. Urgent Deficiencies Act, 38 Stat. 208, 219-220.

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charges; the order thus falls squarely within the type made subject to judicial review by § 41 (28). Rochester Telephone Corp. v. United States, 307 U. S. 125, 131–132, 142-143; El Dorado Oil Works v. United States, 328 U. S. 12, 18-19.

The Commission and the railroads contend, however, that § 9 of the Interstate Commerce Act, 49 U. S. C. § 9, bars the United States or any other shipper from judicial review of an order denying damages in reparation proceedings initiated before the Commission. Section 9 provides in part:

"Any person or persons claiming to be damaged by any common carrier .. may either make complaint to the commission ... or may bring suit for the recovery of the damages. . . in any district court of the United States of competent jurisdiction; but such person or persons shall not have the right to pursue both of said remedies, and must in each case elect which one of the two methods of procedure herein provided for he or they will adopt."

The contention of the Commission and the railroads as to § 9 is this. A shipper has an alternative. He may bring his action before the Commission or before the courts. But he must make an election. If he elects to "bring suit" in a court and is unsuccessful, he retains the customary right of appellate review. If he elects to "make complaint to" the Commission, as the Government did, and relief is denied, he is said to be barred by the statutory language of § 9 from seeking any judicial review of the Commission order. Under the contention the order is final and not reviewable by any court even though entered arbitrarily, without substantial supporting evidence, and in defiance of law.

Such a sweeping contention for administrative finality is out of harmony with the general legislative pattern of

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administrative and judicial relationships. See, e. g., Shields v. Utah I. C. R. Co., 305 U. S. 177, 181-185; Stark v. Wickard, 321 U. S. 288, 307-310. And this Court has consistently held Commission orders reviewable upon charges that the Commission had exceeded its lawful powers. See,, e. g., Interstate Commerce Commission v. Louisville & N. R. Co., 227 U. S. 88, 91-93; Chicago Junction Case, 264 U. S. 258, 266. The language of § 9 does not suggest an abandonment of these consistent holdings. It does suggest that a shipper who elects either to "make complaint to" the Commission or to "bring suit" in a court is thereafter precluded from initiating a § 9 proceeding in the other. It may therefore be assumed that after a shipper has elected to initiate a Commission proceeding for damages he could not later initiate an original district court action for the same damages. But forfeiture of the right to initiate his claim in the court under § 9 is one thing; forfeiture of his right under 28 U. S. C. (1946 ed.) § 41 (28), now § 1336, to obtain judicial review of an unlawful Commission order is another. Section 9's language controls the forum in which reparation claims may be begun and tried to judgment or order; it does not purport to give complete finality to a court judgment or to a Commission order merely because

The Administrative Procedure Act, 60 Stat. 237, 243, 5 U. S. C. §§ 1001 (d), 1009, provides:

"SEC. 2. (d) ORDER AND ADJUDICATION.-'Order' means the whole or any part of the final disposition (whether affirmative, negative, injunctive, or declaratory in form) of any agency in any matter other than rule making but including licensing. 'Adjudication' means agency process for the formulation of an order."

"SEC. 10. Except so far as (1) statutes preclude judicial review or (2) agency action is by law committed to agency discretion“(a) RIGHT OF REVIEW.-Any person suffering legal wrong because of any agency action, or adversely affected or aggrieved by such action within the meaning of any relevant statute, shall be entitled to judicial review thereof."

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a shipper elected to proceed in one forum rather than the other. So we can find nothing in the language of § 9 that bars a court from reviewing a reparation order upon allegations by a shipper that the order was entered in defiance of standards established by Congress to determine when reparations are due.

Furthermore, the section's careful provision for judicial protection of railroads against improper Commission awards argues against interpretation of the same section to deny to shippers any judicial review whatever. Under the suggested interpretation a shipper could recover nothing if the Commission decided against him. But a Commission award favorable to a shipper is not final or binding upon the railroad. Such an award "only establishes a rebuttable presumption. It cuts off no defense, interposes no obstacle to a full contestation of all the issues, and takes no question of fact from either court or jury. . . . Nor does it in any wise work a denial of due process of law." Meeker & Co. v. Lehigh Valley R. Co., 236 U. S. 412, 430. And see Pennsylvania R. Co. v. Weber, 257 U. S. 85, 90-91. It hardly seems possible to find from the language of § 9 a congressional intent to guarantee railroads complete judicial review of adverse reparation orders while denying shippers any judicial review at all.

What we have said would dispose of the § 9 contention but for the argument of the Commission and the railroads that their suggested interpretation of the section is required by this Court's holding in Standard Oil Co. v. United States, 283 U. S. 235, and other cases that followed it. In that case the Standard Oil Co., a shipper, was denied the right to judicial review of a Commission order denying reparations. Judicial review was denied on four grounds: (1) The order in the Standard Oil case denying reparations was "negative" in form, and was therefore beyond judicial appraisal under the

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"negative order" doctrine. This doctrine was wholly abandoned in Rochester Tel. Corp. v. United States, 307 U. S. 125. (2) The decision in the Standard Oil case held that the Commission order was supported by substantial evidence and was not otherwise in violation of law. The Government's claim here is that this order cannot meet that test. (3) The third ground for denial of judicial review was that having elected to test its damage claim before the Commission, Standard was precluded from judicial review. (4) A three-judge court was an improper tribunal to adjudicate damage claims under § 9.

The Standard Oil interpretation of § 9 denying shippers any judicial review was made by a court usually careful to protect against arbitrary or unlawful administrative action. And, as shown, the court there first satisfied itself that the Commission order was not the product of an unlawful exercise of power by the Commission. Furthermore, the "negative order" philosophy, then at its peak, clearly barred review of all orders denying reparations. Consequently, the Standard Oil §9 interpretation barred judicial review of no class of Commission orders except orders already immune from such review under the "negative order" doctrine. The Standard Oil holding was thus clearly supported by and rooted in the now rejected "negative order" doctrine."

Another reason for the Court's construction of § 9 in the Standard Oil case was that Standard's damage claim

5 Mr. Justice Cardozo so treated the Standard Oil holding in I. C. C. v. United States, 289 U. S. 385, 388, a case decided prior to this Court's repudiation of the "negative order" doctrine. He there said that in denying reparations "the Commission speaks with finality. Its orders purely negative-negative in form and substanceare not subject to review by this court or any other." Authorities for this statement were "negative order" cases. These same cases were relied on by the court in a later case that referred with approval to the Standard Oil § 9 interpretation. Terminal Warehouse Co. v. Pennsylvania R. Co., 297 U. S 500, 507-508.