damage to complainants.' In these cases, therefore, the complaint is in the nature of an information and the complainants occupy, in part, at least, the attitude of informers." After citing the decision of the Circuit Court just examined, he continued: The same principle applies in a case like the present before this Commission. The complainants represent 'the public at large' as well as themselves. The public interested includes consignees, consumers and others, as well as shippers and producers or manufacturers." And see to the same effect Chicago Live Stock Exchange v. Chicago G. W. R. R., 10 I. C. C. Rep. 428 (1905).

A fortiori the fact that others associated with the complainants are acting illegally will not affect the validity of the complaint. Thus the fact that the members of a corporation organized to promote the marketing of live stock at a given city are violating the anti-trust law will not prevent the corporation from maintaining a proceeding to correct an unreasonable freight rate on live stock shipped to such city. Cattle Raisers' Assoc. v. Fort Worth & D. C. R. R., 7 I. C. C. Rep. 513 ( ). So the fact that a certain association constitutes an illegal monopoly will not affect the right of certain members of the association, constituting but a portion of its membership, to complain. Tift v. Southern R. R., 10 I. C. C. Rep. 548 (1905).

§ 1056. Proper parties defendant.

Where a through rate is in question, all the carriers participating in the rate are proper parties, and may be joined as defendants. Warren-Ehret Co. v. Central R. R., 8 I. C. C. Rep. 598 (1900); Cattle Raisers' Assoc. v. Chicago, B. & Q. R. R., 10 I. C. C. Rep. 83 (1904); Texas & P. R. R. v. Interstate Commerce Com., 162 U. S. 197, 40 L. Ed. 940, 16 Sup. Ct. 666; 5 Int. Com. Rep. 405 (1896).

1057. Necessary parties defendant.

All carriers whose appearance is necessary to settle the controversy must of course be present. Riddle v. Pittsburgh & L. E. R. R., 1 Int. Com. Rep. 773, 1 I. C. C. 490 (1888); Michigan Congress Water Co. v. Chicago & G. T. R. R., 2 Int. Com. Rep. 428, 2 I. C. C. 594 (1889). And no carrier can be affected by the order of the Commission unless he was a party to the proceeding. Poughkeepsie Iron Co. v. New York C. & H. R. R. R., 3 Int. Com. Rep. 248, 4 I. C. C. 195 (1890). The reason for securing the appearance of all interested carriers is clear. The reasonableness of rates cannot be fairly determined in a proceeding to which some of the parties responsible for such rates are not parties. New Orleans Cotton Exch. v. Cincinnati, N. O. & T. P. R. R., 2 Int. Com. Rep. 289, 2 I. C. C. 375 (1888); Michigan Congress Water Co. v. Chicago & G. T. R. R., 2 Int.

Com. Rep. 428, 2 I. C. C. 594 (1889); Kentucky & I. Bridge Co. v. Louisville & N. R. R., 2 Int. Com. Rep. 102, 2 I. C. C. 162 (1888).

46

When complainants desire to test the justice or legality of the through rates from Frankfort to New York, the necessity of bringing in the parties who make the rates, not for forty-six miles merely but for the whole distance, is obvious. They must be brought in, first, because they have a right to be heard, and second, because an order made and purporting to control their action when they were not parties would be improper on its face, and in a legal sense ineffectual. If such an order could have any effect as against the initial road, it would only be to prevent its agents naming to shippers when they called for it an aggregate through rate; it would not prevent its making the same rate as now to South Wanatah, nor preclude the connecting road from making rates independently from South Wanatah eastward." Allen v. Louisville N. A. & C. R. R., 1 Int. Com. Rep. 621, I I. C. C. 199 (1887).

So where a leased road is made the party defendant, the operating road should be added as a party. Boyer v. Chesapeake, O. & S. W. Ry., 7 I. C. C. Rep. 55 (1897).

§ 1058. Supervening receivership.

The fact of a receivership for a defendant carrier subsequent to complaint should not interfere with the progress of a proceeding brought merely for the purpose of railway regulation. Trammell v. Clyde Steamship Co., 4 Int. Com. Rep. 120, 5 I. C. C. 324 (1892). Or for violations of the act in general. Troy Board of Trade v. Alabama Midland Ry., 4 Int. Com. Rep. 348, 6 I. C. C. 1 (1894).

1059. One of several joint parties.

But it is not necessary that all carriers should be joined as defendants who would be proper parties to the proceedings. Thus where a complaint is made of rates fixed by an association of carriers, it is not necessary to join all the carriers in the association; the one carrier against which the particular complaint is directed may be the only defendant. Page v. Delaware, L. & W. R. R., 6 I. C. C. Rep. 548 (1896). But see Minneapolis Chamber of Commerce v. Great Northern Ry., 4 Int. Com. Rep. 230, 5 I. C. C. 571 (1892). So a railroad company which participated in through rates is not a necessary, even if it is a proper, party to a proceeding by the Interstate Commerce Commission against another company for disobedience of an order of the Commission in the matter of such rates. Texas & P. R. Co. v. Interstate Commerce Commission, 162 U. S. 197, 40 L. Ed. 940, 16 Sup. Ct. 666, 5 Int. Com. Rep. 405 (1896). And one or more of several connecting carriers need not be made parties to a proceeding before the Interstate Commerce Commission against another connecting carrier for

unlawful discrimination in rates between places wholly on its own line as compared with the through rate over the connecting lines. Daniels v. Chicago, R. I. & P. R. R., 458, 6 I. C. C. Rep. 458 (1895). See to the same effect Independent Relief Assoc. v. Western N. Y. & P. R. R., 6 I. C. C. Rep. 378 (1895). So where one railroad company owns a controlling interest in a subsidiary company while service of complaint on the controlling company may not be legal service upon a subsidiary company, it does in fact, for all practical purposes, inform the other company of the proceedings. Mayor and City Council of Wichita v. Atchison, T. & S. F. R. R., 9 I. C. C. Rep. 534 (1903).

But it is sometimes inconvenient to get all the carriers before the Commission at the same time; and a hearing of a complaint against one of a number of connecting carriers may be the only practical thing. So in an early proceeding to correct a classification by the initial carrier of freight which, before reaching its destination, must pass over the roads of several carriers, it was stated by the Commission that all such carriers should be made parties; yet where the initial carrier alone is made defendant, it was held that the proceeding was not therefore defective. Hurlburt v. Lake Shore & M. S. R. R., 2 Int. Com. Rep. 81, 2 I. C. C. 122 (1888). In a case soon after decided the Commission in a similar case said that an order might issue against the respondents, and the cause be held for the purpose of bringing such other carriers into it to be proceeded against unless they comply with the order. Bates v. Pennsylvania R. R., 2 Int. Com. Rep. 715, 3 I. C. C. 435 (1889). And this procedure is now well settled. Thus while a railroad company operating its road as part of a through line in connection with other carriers, defendants in a case brought to test the legality of a through charge over such line, is a proper party, it is not a necessary party to the proceeding. Warren-Ehret Co. v. Central R. R., 8 I. C. C. Rep. 598 (1900); and in proceedings to determine the reasonableness of a through rate as augmented by an alleged unlawful terminal charge, all the carriers participating in the through rate are not necessary parties; the only necessary parties defendant, are the carriers who retain the terminal charge for their own use. Cattle Raisers' Assoc. v. Chicago, B. & Q. R. R., 10 I. C. C. Rep. 83 (1904).

§ 1060. Parties must have an interest.

Only persons having some legal interest in the controversy can be joined as parties defendant. For this reason the receiver of a railroad company is not, after his discharge, either a proper or necessary party defendant to an action for a rebate of freight under a contract made by him. He is not personally liable on contracts officially made by him; and his official connection with the controversy having ceased he is not interested. Bayles v. Kansas Pacific R. R., 13 Colo. 181, 2 Int. Com. Rep. 643 (1889).

§ 1061. Intervening parties.

It is not necessary for a carrier to be made a party defendant in order to secure a hearing before the Commission; all persons having an interest in a question pending before the Commission may appear when the case is submitted, without being made formal parties. Hurlburt v. Lake Shore & M. S. R. R., 2 Int. Com. Rep. 81, 2 I. C. C. 122 (1888).

TOPIC D-ORDER OF PROCEDURE.

§ 1062. Default.

[See Rules in Appendix.]

The petition will be dismissed if the complainant fails to appear at the hearing. Jackson v. St. Louis, A. & T. Ry., 1 Int. Com. Rep. 599 (1887); or if he admits the legality of the defendant's acts. Re Export Trade of Boston, 1 Int. Com. Rep. 25, 1 I. C. C. 24 (1897); or totally fails to produce any evidence to prove the issue. Holbrook v. St. Paul, M. & M. R. R., 1 Int. Com. Rep. 323, 1 I. C. C. 102 (1887); Leonard v. Union Pacific Ry., 1 Int. Com. Rep. 627 (1887); Rice v. Louisville & N. R. R., 1 Int. Com. Rep. 722 (1888).

§ 1063. Stay of proceedings.

The Commission may in a proper case stay the proceedings and hold the case open until a future time. So where a similar case had been heard by the Commission and an order made and a petition to enforce the order was pending in the courts, the present case was stayed until final determination of the petition in the courts. Southern Paint & G. Co. v. Lake Erie & W. R. R., 6 I. C. C. Rep. 284 (1894). And so where it seemed best the Commission having indicated its view of the question, recommended the carriers concerned to amend their tariffs in accordance with the opinion to expressed, and meanwhile held the case open for future application of the parties. Paine Bros. & Co. v. Lehigh Valley R. R., 7 I. C. C. Rep. 213 (1897); and see Rea v. Mobile & O. R. R., 7 I. C. C. Rep. 43 (1897).

1064. Continuance for settlement.

Where a carrier at the hearing agrees to conform to the desires of the Commission, no order will be made at the time, but the case will be continued to give the carrier an opportunity to remove the cause of complaint. Hot Springs v. Western N. C. R. R., 1 Int. Com. Rep. 316 (1887); Holbrook v. St. Paul, M. & M. Ry., 1 Int. Com. Rep. 323, 1 I. C. C. 102 (1887); Re Alleged Unlawful Transportation Charges, 6 I. C. C. Rep. 624 (1896).

TOPIC E-EVIDENCE AND BURDEN OF PROOF.

[See Appendix.]

§ 1065. Testimony on both sides should be introduced.

It is not proper for railroad companies to withhold the larger part of their evidence from the Interstate Commerce Commission, and first adduce it in the Circuit Court in proceedings by the Commission to enforce its order; but the purposes of the act of Congress to regulate commerce call for a full inquiry by the Commission in the first instance. "The Commission is an administrative board, and the courts are only to be resorted to when the Commission prefers to enforce the provisions of the statute by a direct proceeding in the court, or when the orders of the Commission have been disregarded. The theory of the act evidently is, as shown by the provision that the findings of the Commission shall be regarded as prima facie evidence, that the facts of the case are to be disclosed before the Commission. We do not mean, of course that either party, in a trial in the court, is to be restricted to the evidence that was before the Commission, but that the purposes of the act call for a full inquiry by the Commission into all the circumstances and conditions pertinent to the questions involved." Shiras, J., in Cincinnati, N. O. & T. P. R. R. v. Interstate Commerce Commission, 162 U. S. 184, 40 L. Ed. 935, 16 Sup. Ct. 700, 5 Int. Com. Rep. 391 (1896). See Spartanburg Board of Trade v. Richmond & D. R. R., 2 Int. Com. Rep. 193, 2 I. C. C. 304 (1888).

§ 1066. Acts of Commission need not be proved.

Contracts and tariffs filed with the Commission under the Act to Regu late Commerce, § 6, may be considered, although not specifically introduced in evidence on the hearing. Boston Fruit & P. Exch. v. New York & N. E. R. R., 3 Int. Com. Rep. 493, 4 I. C. C. 664 (1891); and see Re Rates and Charges on Food Products, 3 Int. Com. Rep. 151, 155, 4 I. C. C. 116 (1890).

§ 1067. Rules of evidence.

The ordinary rules of evidence are enforced in proceedings before the Commission. Thus the rule as to parol evidence appears to be enforced. So terms of art, or terms peculiar to any occupation or business, used in a classification sheet to designate the product of a particular employment, are supposed to be understood in that employment; and it is not competent for railroad experts, when the meaning of the classification is questioned, to testify in what sense they are understood in classification circles. Hurlburt v. Lake Shore & M. S. R. R., 2 Int. Com. Rep. 81, 2 I. C. C. 122 (1888).

On the same general principle, unauthorized declarations of a depot agent, implying that a tank car which has returned from one long journey