pleas in abatement or other interlocutory proceedings, the matter in question may be brought to an issue at the earliest practicable day when a final hearing may be had forthwith, and all proper questions will then be entertained, whether jurisdictional or going to the merits of the controversy. So in a case where the defendant moved to dismiss the petition for lack of jurisdiction, the Commission declined to take up the motion, because the object of the motion was to reach the merits of the case and have them discussed and passed upon summarily, instead of at the customary final hearing. A practice thus to anticipate by motion the final hearing the Commission did not think advisable and would not therefore favor. Associated Wholesale Grocers v. Missouri Pac. R. R., 1 Int. Com. Rep. 321, 1 I. C. C. 156 (1887).

In accordance with this view, the Commission desires counsel to simplify the issues so far as possible by agreeing upon the facts. This was expressed by the first chairman, Judge Cooley, in a letter in connection with a petition of the Boards of Trade Union of Minnesota. 1 Int. Com. Rep. 446 (1887). He wrote that in nearly every case "the major portion of the facts are not in dispute at all, and as to all such facts we are compelled to insist that counsel shall stipulate them in advance. We have more difficulty with this matter than with any other, counsel holding themselves aloof from each other, not trying to agree or not half trying, and then coming forward expecting to take time indefinitely in making proof of facts which are really not contested. If we had an indefinite amount of time at our disposal, they might be indulged; but as the case actually is, unnecessary indulgence to some is equivalent to denial of rights to others awaiting a hearing.

"In the Boards of Trade Union case, the facts must be largely matters of public notoriety, and it would be altogether wrong to calculate upon taking up time to prove them by oral evidence. An agreement upon them should be all ready before we take up the case. Of couse it would not be expected parties should agree upon the consequences flowing from the facts, but even as to these it is not generally necessary to go into proof as in a suit at law, for the Commission will apply its own judgment where all that is requisite in an application of ordinary common sense, and will not require or expect that evidence be adduced to show that usual results have followed."

81048. Parties given opportunity to be heard.

Proceedings on complaint of a party take the form of judicial proceedings. Thus a reasonable opportunity will be given for the parties to be heard. Business Men's Assoc. v. Chicago & N. W. Ry., 2 Int. Com. Rep. 48, 2 I. C. C. 52 (1888). So where a railroad submits a shipper's claim for carload rating on a mixed carload to the Commission, it will be treated

as a complaint and answer, and the cause will proceed judicially. Roth v. Texas & P. Ry., 9 I. C. C. Rep. 602 (1902).

1049. Place of hearing.

The Commission may hear cases either in Washington or in some other convenient place. A case involving local rates was ordered to be heard before the Interstate Commerce Commission at a central point in the ter ritory immediately affected by the rates. Delaware State Grange v. New York, P. & N. R. R., 2 Int. Com. Rep. 187, 2 I. C. C. 309 (1888).

If the petition is not specific, though plainly sufficient to constitute the basis for an award of damages, the defendants are entitled, before the hearing, to a specification showing in detail the amounts for which recovery is sought. Cattle Raisers' Assoc. v. Chicago, B. & Q. R. R., 10 I. C. C. Rep. 83 (1904).

1050. Pleadings.

The complaint must be presented in a verified petition. Re Southern Pac. R. R., I Int. Com. Rep. 16, 1 I. C. C. 6 (1887). The complainant will be bound by the form of his complaint. So when a carrier on complaint under the Act to Regulate Commerce, § 4, avers substantial dissimilarity in circumstances and conditions as justifying its greater charge for shorter hauls, it is concluded by its pleading, and must affirmatively show that the circumstances and conditions, of which it is entitled to judge in the first instance, are in fact substantially dissimilar; but upon an application for relief under the § 4 proviso the carrier is not limited by such a rule of evidence, and may present to the Commission every material reason for an order in its favor. Trammell v. Clyde Steamship Co., 4 Int. Com. Rep. 129, 5 I. C. C. 324 (1892).

An answer which sets up a justification must clearly advise complainants of the facts and circumstances relied on as constituting such justification. Raworth v. Northern P. R. R., 3 Int. Com. Rep. 857, 5 I. C. C. 234 (1892).

Under the rules of practice issued by the Commission, a replication to an answer is not required or allowed. Oregon S. L. Ry. v. Northern P. R. R., 2 Int. Com. Rep. 639, 3 I. C. C. 264 (1889). Matter which is not expressly in issue by the pleadings or necessarily involved in issues presented in a strictly inter partes case instituted by complaint before the Interstate Commerce Commission cannot be authoritatively determined by it. Commercial Club v. Chicago, R. I. & P. R. R., 6 Int. Com. Rep. 647 (1896).

The Interstate Commerce Commission is liberal in allowing amendments to complaints, but will not allow one that would be in effect making a new case. Delaware State Grange v. New York, P. & N. R. R., 2 Int. Com.

Rep. 187, 2 I. C. C. 309 (1888); Riddle v. Baltimore & O. R. R., 1 Int. Com. Rep. 701, I. C. C. 372 (1888). A complaint against a railroad company stating that it had been previously in the hands of a receiver who was now president, was allowed to be amended so as to show existence of receivership which it appeared on hearing was still in existence. Reynolds v. Western New York & P. Ry., 1 Int.,Com. Rep. 685, 1 I. C. C. 347 (1887).

TOPIC C- PROPER PARTIES.

§ 1051. Person interested as complainant.

Only a person interested in his own right can file a complaint. Thus a coal operator not being damaged by the failure of a railroad company to establish a rate upon a class of coal not produced at his mine, cannot complain of such a rate. McGrew v. Missouri Pac. R. R., 8 I. C. C. Rep. 630 (1901). The person aggrieved should complain in his own name; a complaint by a ticket broker having no interest in the transaction will not be entertained. Ottinger v. Southern Pac. R. R., 1 I. C. C. Rep. 607 (1887). But the interest of the petitioner, by the provision of the act, need not be direct; therefore the defendants are not entitled to a dismissal of a complaint of unlawful rates, on the ground that the petitioners, being merely commission merchants, can sustain no direct or material damage under the rates in question. James v. Canadian P. R. R., 4 Int. Com. Rep. 274, 5 I. C. C. 612 (1893); Milk Producers' Protective Assoc. v. Delaware, L. & W. Ry., 7 I. C. C. Rep. 92 (1897); Central Y. P. Assoc. v. Vicksburg, S. & P. R. R., 10 I. C. C. Rep. 193 (1904).

1052. Complaint by association.

A corporation whose object is to promote the marketing of live stock at Chicago in the interest of its members may, under the Act to Regulate Commerce, § 13, maintain a proceeding to correct an unreasonable freight rate on live stock shipped to Chicago, as its members, for whose general benefit and protection it was formed, have a vital interest in such a proceeding. Cattle Raisers' Assoc. v. Fort Worth & D. C. R. R., 7 I. C. C. Rep. 513 (1897); Chicago Live Stock Exchange v. Chicago G. W. R. R., 10 I. C. C. Rep. 428 (1905). So a Milk Producers' Association, whether representing its own members, or specially authorized to represent other shippers, or assuming in addition to represent shippers engaged in the same industry on some of the defendant lines, was entitled to bring and maintain this proceeding, affecting rates on milk supplied for a common market, against all the defendants engaged in carrying for that market. A defendant carrier is not entitled to have a complaint dismissed as to it "because of the absence of direct damage to the complainant," and it is the duty of the Commission, under express direction in the act, to exe

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cute and enforce" the provisions of the statute. Milk Producers' Protective Assoc. v. Delaware, L. & W. R. R., 7 I. C. C. Rep. 92 (1897). And while an association of shippers has no direct interest in the determination of the question as to whether divisions or allowances from published tariff rates, made by defendants to tap lines owned or controlled by other shippers, constitute departures from the published rates, it has such an indirect interest as entitles it, under the statute, to maintain a proceeding to have such division declared unlawful. Central Yellow Pine Assoc. v. Vicksburg, S. & P. R. R., 10 I. C. C. Rep. 193 (1904). If the complaint is brought in the name of the association, it seems that in a proper case reparation may be ordered to individual members; but the better practice, in view of the unsettled state of the law in this respect, and in order that all phases of the question may be presented to the court, is for the members of the association seeking damages to file claims in the nature of intervening petitions. When such a petition is filed, it is considered the beginning of the action in all its subsequent stages; consequently the suit of the members of a cattle raisers' association for the recovery of damages should be treated as having been begun by the filing on their behalf of the original petition by the association itself, although they subsequently intervened. Cattle Raisers' Assoc. v. Chicago, B. & Q. R. R., 10 I. C. C. Rep. 83 (1904).

$1053. Board of trade.

In the case of Texas & Pacific Ry. v. Interstate Commerce Commission, 162 U. S. 197, 40 L. Ed. 940, 16 Sup. Ct. 666, 5 Int. Com. Rep. 405 (1896), the complaint was originally made "by certain corporations of New York, Philadelphia and San Francisco, known as boards of trade, or chambers of commerce, which appear to be composed of merchants and traders in those cities, engaged in the business of reaching and supplying the consumers of the United States with imported luxuries, necessities, and manufactured goods generally, and as active competitors with the merchants at Boston, Montreal, Philadelphia, New Orleans, San Francisco, Chicago, and merchants in foreign countries who import direct on through bills of lading issued abroad." The defendants argued that the complaint was not legally made. The Commission and, subsequently the courts, held that the complaint might be entertained. In the Supreme Court Mr. Justice Shiras said: "We shall assume, in the disposition of the present case, that a valid complaint may be made before the Commission, by such trade organizations, based on a mode or manner of treating import traffic by a defendant company, without disclosing or containing charges of specific acts of discrimination or undue preference, resulting in loss or damage to individual persons, corporations, or associations. We do not wish to be understood as implying that it would be competent for the Commis

sion, without a complaint made before it, and without a hearing, to subject common carriers to penalties."

1054. State Railroad Commission.

The repeal of the law creating the railroad commission of Florida does not operate as a withdrawal or dismissal of a complaint brought in its name before the Interstate Commerce Commission for the real parties in interest. Railroad Commission of Florida v. Savannah, F. & W. R. R., 3 Int. Com. Rep. 688, 5 I. C. C. 136 (1891).

1055. Complainant not coming with clean hands.

The defendant has sometimes objected to the maintenance of the complaint on the ground that the complainant did not come before the Commission with clean hands. Thus in the case of the Interstate Commerce Commission v. Southern Pacific Company, 132 Fed. 829 (1904), there was involved an order of the Commission forbidding the enforcement by defendants therein of a rule whereby they reserved to themselves, as initial carriers, the right of routing citrus traffic beyond their own lines and denied this privilege to shippers. The defendants contended that, even if the rule was unlawful, the complainants (shippers) were not entitled to relief, because they had used the privilege of routing for the purpose of securing rebates and desired to retain it for that purpose. In overruling this contention the court said: "With reference to defendants' contention, that the complainants before the Interstate Commerce Commission were there with unclean hands, it is only necessary to say, that, in this court, the Commission represents the public at large and therefore no participation by said complainants in the unlawful practice of rebates could bar relief."

A similar objection was made in the case of Tift v. Southern Railroad, 10 1. C. C. Rep. 548 (1905). The complainants were members of an association which, it was claimed, constituted an illegal monopoly. The Commission held that this fact was immaterial. Mr. Commissioner Clements said: "A proceeding like the present before this Commission, although instituted by and in the name of parties complaining of injury to themselves from alleged violations of law, is not a strictly private or personal suit into which a party complainant must enter with clean hands,' but is a proceeding for the enforcement of a public duty as well as of an individual or private right.

"The act to regulate commerce provides that this Commission may institute an inquiry of its own motion' into a matter of the kind involved in this case in the same manner and to the same effect as though complaint had been made,' and that, where complaint is made, such complaint shall not, at any time be dismissed because of the absence of direct