bringing suit upon it in the Circuit Court of the United States.

In the case cited, Western New York Ry. Co. v. Pennsyl vania Refining Co., 137 Fed. Rep. 343, the Circuit Court of Appeals said that the substantial object of an action upon an order for reparation made by the Commission is to obtain the reparation lawfully ordered to be paid. The law allows no appeal from the decision of the Commission denying or awarding reparation, nor does a writ of error lie in such case. The lawfulness of an order of reparation does not necessarily depend upon a sufficiency of evidence, adduced before the Commission, but upon the existence of facts, whether or not disclosed to that body, warranting the reparation ordered; and in an action brought to obtain such reparation, based on the order of the Commission, it is enough that such facts be established by proper evidence. "Hence," says the court, "in such an action the parties are not confined to the evidence adduced before the Commission during the investigation resulting in the order of reparation. They are at liberty, either wholly or partially, to rely upon the 'findings of fact' made by the act prima facie evidence in any judicial proceeding as to each and every fact found,' or resort may be had by them or any of them to cumulative or other evidence. The cause of action is examined de novo and the proceeding is, in a qualified sense, independent of the investigation by the Commission." (Western New York Ry. Co. v. Pennsylvania Refining Co., 137 Fed. Rep. 343.)

The facts were as follows: the Pennsylvania Refining Company, Limited, of Oil City, Pa., on December 4, 1888, made a complaint to the Commission against the Western New York and Pennsylvania Railroad Company and Samuel G. DeCoursey, receiver thereof, and against the Lehigh Valley Railroad Company to recover damages for excessive and unlawful transportation charges upon shipments of oil. After a hearing, the Commission, on October 22, 1895, directed the Western New York and its receiver to pay the claimant $8,579, with interest from May 15, 1894, and directed the other defendants, New York, Lake Erie and Western and others, to pay the claimant $343.58, with interest from May

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15, 1894.

Defendants refused to comply with the orders and plaintiff brought actions thereon in the Circuit Court of the United States for the Western District of Pennsylvania. The cases were tried before a jury, in May, 1902, and plaintiff had a verdict against the Western New York for $12,706.92, including interest, and for $514.30 against the New York, Lake Erie and Western and others. Judgment was entered, and defendants sued out a writ of error to the Circuit Court of Appeals. Both judgments were reversed upon technical grounds. One of the grounds was that the complainant failed to obtain an order of court for leave to sue the receiver of one of the carrying companies, notwithstanding the fact that the statute expressly makes the receiver primarily liable.

It appeared that in September, 1888, the freight rates on refined oil in barrels, from the Pennsylvania oil regions to New York, was raised by the carrier to sixty-six centsa prohibitive tariff. Complaint was made to the Interstate Commerce Commission on December 4, 1888, and in May, 1889, a hearing was had before the Commission. On November 14, 1892, the Commission decided against the carriers, holding that they were guilty of unjust discrimination. A rehearing was granted by the Commission in October, 1893. Upon the hearing on October 22, 1895, damages were awarded to the shippers in the orders above referred to. In May, 1896, the petitioners sued in equity upon the orders in the Circuit Court of the United States for the Western District of Pennsylvania. In July, 1897, the court declined jurisdiction on its equity side, holding that the remedy was upon the law side of the court in an action triable by jury. The case was placed upon the calendar, and was tried and. resulted in a verdict by the jury in favor of the refiners, which judgment was entered in February, 1903. These judgments were set aside by the Circuit Court of Appeals in May, 1905, in the decision cited above. After the lapse of seventeen years, the shippers found themselves in about the position they were in when the litigation was begun.

These cases were referred to and commented upon during the discussion of the railway rate bill of 1906, in the Senate,

and doubtless lead to the distinction, in section 16 of the amended act, between orders "lawfully" made and orders "regularly" made. That section provides that if the carrier re.uses to obey any order of the Commission, other than an order for the payment of money, the order may be enforced in equity by the Commission upon petition setting forth the substance of the order and the respect in which the carrier has failed of obedience. The section declares that

such an order, if found to be "regularly" made, shall be enforced by injunction. If, however, the carrier desires to review the facts de novo, and to attack the lawfulness of the order, it must do so in a suit brought in the Circuit Court of the United States against the Commission to enjoin, set aside, annul, or suspend the order. The difficulty with making this provision applicable to an order for the payment of money arises from the fact that a claim for damages must be tried before a jury. In order to protect the shipper, as far as possible, the law provides that the burden of proof is on the carrier to successfully defeat the order before the jury. It is made prima facie evidence of the facts therein stated.

8 37. Order for Damages, how Enforced.-As an order awarding damages is based upon the allegation that the defendant carrier has been guilty of a breach of duty, or a breach of contract, the issue must be tried by a jury, unless jury trial is waived by defendant. An action to recover damages in other words, is an action at law, and not a suit in equity, and section 7 of the Constitution declares that "in suits at common law, where the value in controversy shall exceed twenty dollars, the right to trial by jury shall be preserved." It is necessary, therefore, in order to enforce an order for damages, to sue on the order, and try the case before a jury in the United States Circuit Court for the district where the petitioner resides, or the district in which is located the principal office of the carrier. A petition must be filed stating briefly the facts and the order of the Com

mission.

The law, however, in such a suit, gives the petitioner a

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decided advantage, because he makes his case by putting in evidence the order and findings of the Commission. With these in evidence he may rest his case, because the law (section 16) makes them prima facie evidence on the trial "of the facts therein stated." If a recovery is had, the petitioner shall be allowed an attorney's fee to be taxed and collected as part of the costs of the suit. If petitioner is defeated no costs can be awarded against him, unless he appeals, and then in case of an affirmance, he must pay only the costs on the appeal. The petition for damages before the Commission must be filed within two years from the time the cause of action accrues. Suit must be brought on the order within one year from its date.

$38. Orders Enforced in Equity.-All orders of the Commission, other than orders for the payment of money, must be enforced in proceedings on the equity side of the court, by injunction or other mandatory process, and in such proceedings the court shall have the powers "ordinarily exercised by it in compelling obedience to its writs of injunction and mandamus." An order for damages must be enforced by the party to whom the damages are awarded or for whose benefit the order is made. An order, other than for the payment of money, may be enforced by the Interstate Commerce Commission or by any party injured. It may be enforced either in a Circuit or District Court of the United States. It must be enforced by petition, setting forth the substance of the order, "and the respect in which the carrier has failed of obedience." The court directs in what manner the facts shall be investigated, and if it appears that the order was "regularly made and duly served," and that it has been disobeyed, the court shall enforce obedience by injunction or other mandatory process.

This enforcement is summary, for the reason that in such a proceeding the court cannot review the "lawfulness" of the order. It must ascertain only whether the order was "regularly" made. In other words, the inquiry will be limited to the question as to whether the Commission had jurisdiction. If it appears that, in making the order, all

the requirements of the statute as to service of papers and opportunity for hearing have been observed, then the Commission had jurisdiction and the order will have been "regularly made."

8 39. Lawfulness of Order How Reviewed.-Whether an order of the Commission is or is not lawful cannot be tried in a proceeding by the Commission, or by the party injured, to enforce the order in a court of equity. In a proceeding to enforce the only inquiry presented is, was the order of the Commission sought to be enforced "regularly made?" Did the Commission have jurisdiction to make it? If the order is "regular" it must be enforced.

If the order is sought to be attacked on the merits, and a trial had de novo before the court, the proceeding must be instituted by the carrier who fails to obey it, in a suit brought by the carrier against the Commission "to enjoin, set aside, annul, or suspend the order." In this regard, therefore, the distinction under the statute between orders regularly" made, and orders "lawfully" made, is apparent.

§ 40. Evidence-Burden of Proof - Findings of Commission Prima Facie Evidence.- The Interestate Commerce Act, authorizing investigation and inquiry by the Interstate Commerce Commission, creates a presumption in favor of the correctness of the Commission's report. The Legisla ture may create rules of evidence and modify or alter or change the same, subject only to the limitations imposed by the provisions of the Constitution. When a body created by an act of Congress is required to take testimony as to the reasonableness of a rate or charge for transportation, the findings and conclusion of the Commission and its report, when offered in evidence in any judicial proceeding, is prima facie evidence of all the facts found by the Commission, and the burden of proof is cast upon the party against whom the report is made to rebut the facts and conclusions set forth in the report.