The certificate provides basic instruction in both two-dimensional and three-dimensional using traditional and digital tools.
Completion of a minimum of 30 credits.
Overall GPA of 2.0 or higher.
Residency hours -- Minimum of 10 credits required through course attendance at UVU.
Notes: Please note that it is possible to take the certificate's required 60 credits in two semesters, but, the AVC Department does not recommend that students take more than three studio classes a semester and depending on what ART/ARTH classes are chosen for the Elective credits, other prerequisite courses may be required which will require more than two semesters.
Visual Literacy We encourage the development of strong visual literacy among students of the visual arts. We support the study of history, culture, technology and trends to this end.
Professional Excellence In preparing visual art students for careers in a broad market, we support and expect excellence and professionalism.
Creative Diversity While teaching techniques, styles, and practices is an important part of our programs, we support a diversity of styles and individual expressions among students in their creative work. We promote artistic freedom and seek to preserve cultural identity through creative production, exhibition, and historical research.
Utah Valley University’s Department of Art & Design offers degrees in applied arts, fine arts, art history, and art education. Upon completing a degree, students emerge from the program ready to enter careers in graphic design, photography, advertising, printing, animation, illustration, art education, printmaking, sculpture, painting and more. Students can earn a general degree, exploring several areas within the visual arts, or they can specialize, exploring a specific practice in depth to better understand it and/or prepare for employment in that field.
A two-year degree where students can emphasize in one of three areas.
A four-year degree that prepares students for careers and additional education in art history.
A four-year degree in which students are trained to teach as art specialists at the secondary level (7–12 grade).
A four-year degree for individuals with above-average abilities, who are looking for a competitive program to hone their skills.
Students who elect to earn a bachelor of arts or associate in arts degree are required to complete a foreign language requirement, while those who earn a bachelor of science or associate in science degree have the option to take more electives. All of these degrees allow students to explore a few areas within the department and gain a more well-rounded education in the visual arts. Some of our 1000 level courses also fulfill general education requirements.
Our degrees prepare students for various career opportunities, some of which are delineated below.
Students are prepared for an array of arts-related jobs, including art dealership, art directorship, and work in museums and galleries. It also provides the necessary foundation for graduate studies in art history, which in turn, will prepare students for a career in postsecondary teaching, museum curatorship, and museum directorship.
Students are prepared to compete in the arts arena typically via self-employment by promoting their work through galleries, museums, exhibitions and commissions. Some students also choose to pursue graduate studies to further their development or to prepare them to teach in higher education. Areas of study include painting, drawing, printmaking, sculpture, and ceramics.
Students are prepared to compete for employment at advertising agencies, design studios, in-house design departments, printing firms, photography studios, gaming developers, animation studios and for freelance consulting work (self-employed). Some students may also choose to further their studies in graduate programs.
The Bachelor of Science in Art Education certifies students to teach as an art specialist at the secondary level in public schools and private schools.
Students are encouraged to learn by applying what they study in the real world and by taking part in activities outside the classroom.
The department offers many opportunities for students to travel and to interact with practicing art professionals. Art & Design offers rotating trips to art capitals, such as New York City, to visit museums, galleries, and artists’ studios. Students may also participate in course related excursions to produce creative works, such as the Art & Design book project. Students can also apply to attend a five-week study abroad program to Italy each summer or to participate in additional rotating international travel experiences.
Students regularly enter their work in competitions at local, state and national levels, with several students earning awards each year. At UVU’s biennial art history symposium, students present their research alongside faculty. Every student in the Department of Art & Design attends an art lecture series, in which artists from around the country visit UVU to present their work, lecture on what they do and occasionally hold a workshop.
The Art & Design Core requirements (ART 1110, ART 1120, ART 1130, ART 1400 and one of the following: ART 1210, ART 1350, ART 1420, ART 1650, or ART 1750) must be completed with a B- or higher before being formally admitted to the BS, BA, and BFA programs.
This degree is for those with exceptional abilities in art and design fields. In order to apply to the BFA, students must first meet the core class requirements (consult with your academic advisor for details) in the Art & Design Department and submit a portfolio for departmental BFA review. Students desiring to participate in the review should submit aletter of intent to the area coordinator in their particular interest. Portfolios will be due in March as designated by the area coordinator. Acceptance into the BFA is based on the portfolio review, overall GPA of 2.0 or above with 3.0 GPA or above in ART and ARTH courses. Courses within the student’s area of emphasis must be completed with a C grade or above. For graduation with a BFA degree, students must maintain the grade requirements listed above and receive a B grade or above for ART 499R BFA Project. For more information, contact the Academic Advisors. Students not accepted into the BFA program, or who are unable to fulfill the above requirements, may still pursue the more general BA/BS degrees.
To ensure that faculty and programs at UVU are adequately teaching and preparing students for professional careers and/or further schooling, the Art & Design Department has implemented a graduating student portfolio submission. All students completing a degree in the Art & Design Department are required to submit a portfolio for faculty/professional review prior to graduation. Results are kept confidential and are used only to help modify and improve curriculum and teaching. Consult with your academic advisor for details of deadlines and requirements to make certain all Art & Design degree graduation requirements are met.
B.A., Italian & Art History, Brigham Young University; Ph.D., Art History, Ohio State University.
B.A., Art History, M.A., Art History & Curator Studies, J.D., Brigham Young University.
B.A., Art , M.A., Art History, M.F.A., Art/Painting, Brigham Young University.
B.A., Computer Art, State University of New York at Oneonta; M.F.A., Photography, Savannah College of Art & Design.
B.F.A., Graphic Design, Utah State University; M.F.A., Design & Visual Communications, Commonwealth University.
B.A., Graphic Design, Surrey Institute of Art & Design.
B.F.A., Illustration, Brigham Young University; M.F.A., Vermont College.
B.S., Art Illustration, Southern Utah University; MFA, Illustration, Academy of Art University.
B.S., Art & Secondary Education Composite, Southern Utah University; M.F.A., Ceramics, Edinboro University of Pennsylvania.
AS, Utah Valley University; B.F.A., Brigham Young University; M.F.A., Maine Media College.
B.A., Sculpture, Utah State University; M.F.A., (ABD), Sculpture, Utah State University.
B.A., Art Education, Weber State University; M.A., Fine Arts, Utah State University; Ph.D. (ABD), Educational Leadership, Brigham Young University.
B.F.A., Photography, Brigham Young University.
B.A., Visual Arts Education, M.A., Printmaking and Painting, Ball State University; M.F.A., Printmaking and Drawing, University of Nebraska-Lincoln.
AAS, Technical Biology, Brigham Young University - Idaho; B.F.A., M.F.A., Illustration, Utah State University.
B.A., Art Education, Fairmont State College; M.A., Ceramics/Sculpture, Indiana University of Pennsylvania; M.F.A., Ceramics/Sculpture, Utah State University.
B.A., Studio Art/Graphic Design, Humboldt State University; M.Ed., Cross-Cultural Teaching, National University; M.F.A., Design & Technology, San Francisco Art Institute.
B.A., Fine Arts, M.F.A., Painting and Drawing, Brigham Young University.
B.F.A., M.F.A., Graphic Design, Utah State University.
This certificate is designed to build basic core skills for Art & Design. This could enhance abilities for someone working in a field that needs to better understand art to fulfill his/her responsibilities. Students can also use this certificate as a stepping stone to both 2 and 4-year programs within the Art & Design department.


(3) otherwise comply with a wildlife, parks and tourism citation as provided in K.S.A. 32-1049, and amendments thereto.
Failure to comply with a wildlife, parks and tourism citation is a class C misdemeanor, regardless of the disposition of the charge for which such citation, complaint or charge was originally issued.
(b) The term "citation" means any complaint, summons, notice to appear, ticket, warrant, penalty assessment or other official document issued for the prosecution of the wildlife, parks and tourism laws or rules and regulations of this state.
(c) In addition to penalties of law applicable under subsection (a) when a person fails to comply with a wildlife, parks and tourism citation or sentence for a violation of wildlife, parks and tourism laws or rules and regulations, the district court in which the person should have complied shall mail a notice to the person that if the person does not appear in the district court or pay all fines, court costs, assessments or fees, and any penalties imposed within 30 days from the date of mailing, the Kansas department of wildlife, parks and tourism shall be notified to forfeit or suspend any license, permit, stamp or other issue of the department. Upon receipt of a report of a failure to comply with a wildlife, parks and tourism citation under this section, and amendments thereto, the department shall notify the violator and suspend or forfeit the license, permit, stamp or other issue of the department held by the violator until satisfactory evidence of compliance with the wildlife, parks and tourism citation or sentence of the district court for violation of the wildlife, parks and tourism laws or rules and regulations of this state are furnished to the informing court. Upon receipt of notification of such compliance from the informing court, the department shall terminate the suspension action, unless the violator is otherwise suspended.
(d) Except as provided in subsection (e), when the district court notifies the department of a failure to comply with a wildlife, parks and tourism citation or failure to comply with a sentence of the district court imposed on violation of a wildlife, parks and tourism law or rule and regulation, the court shall assess a reinstatement fee of $50 for each charge or sentence on which the person failed to make satisfaction, regardless of the disposition of the charge for which such citation was originally issued. Such reinstatement fee shall be in addition to any fine, court costs and other assessments, fees or penalties. The court shall remit all reinstatement fees to the state treasurer in accordance with the provisions of K.S.A. 75-4215, and amendments thereto. Upon receipt of each remittance, the state treasurer shall deposit the entire amount in the state treasury and shall credit such moneys to the state general fund.
(e) The district court shall waive the reinstatement fee provided for in subsection (d), if the failure to comply with a wildlife, parks and tourism citation was the result of such person enlisting in or being drafted into the armed services of the United States of America, being called into service as a member of a reserve component of the military service of the United States of America, or volunteering for such active duty or being called into service as a member of the Kansas national guard or volunteering for such active duty and being absent from Kansas because of such military service. The state treasurer and the director of accounts and reports shall prescribe procedures for all such reimbursement payments and shall create appropriate accounts, make appropriate accounting entries and issue such appropriate vouchers and warrants as may be required to make such reimbursement payments.
(f) Except as provided further, the reinstatement fee established in subsection (d) shall be the only fee collected or moneys in the nature of a fee collected for such reinstatement. Such fee shall only be established by an act of the legislature and no other authority is established by law or otherwise to collect a fee. On and after July 1, 2017, through June 30, 2019, the supreme court may impose an additional charge, not to exceed $22 per reinstatement fee, to fund the costs of non-judicial personnel.
History: L. 2008, ch. 10, § 1; L. 2012, ch. 66, § 11; L. 2013, ch. 125, § 11; L. 2015, ch. 81, § 17; L. 2017, ch. 80, § 13; July 1.
Section was also amended by L. 2012, ch. 47, § 64, but that version was repealed by L. 2012, ch. 166, § 24.


An Ordinance Replacing Chapter 447 of the Code of the Township of Vernon Entitled "Property Maintenance"
The purpose of this chapter is to protect the public health, safety and welfare by establishing minimum standards governing the maintenance, appearance and condition of residential and nonresidential premises. It fixes certain responsibilities upon owners, operators, occupants and other persons. It authorizes and establishes procedures for the inspection of residential and nonresidential premises. It fixes penalties for the violation of this code and provides procedures for correcting violations in those cases requiring Township action. This chapter is hereby declared to be protective, preventive and essential for the public interest.
BUILDING CODE. The Building Code of the Township of Vernon which is the Uniform Construction Code of New Jersey (UCC).
DETERIORATION. A condition characterized by holes, rot, crumbling, cracking, peeling, rusting or other evidence of physical decay or neglect, vandalism, lack of maintenance, excessive use and/or the uncorrected consequences of natural catastrophe.
EXPOSED TO PUBLIC VIEW. Any premises, or any part thereof, which may be viewed lawfully by the public or any member thereof.
EXTERIOR PROPERTY. The open space on the premises and on adjoining property under the control of owners or operators of such premises.
LET FOR OCCUPANCY OR LET. To permit, provide or offer possession or occupancy of a dwelling, dwelling unit, rooming unit, building, premises or structure by a person who is or is not the legal owner of record thereof, pursuant to a written or unwritten lease, agreement or license, or pursuant to a recorded or unrecorded agreement of contract for the sale of land.
MAINTENANCE. To keep in good repair and preserve the premises.
OCCUPANT. Any person living or sleeping in a building; or having possession of a space within a building.
OPERATOR. Any person who has chore, charge or control of a structure or premises which is let or offered for occupancy. This term shall not include licensed real estate agents.
OWNER. Any person, agent, operator, firm or corporation having a legal or equitable interest in the property; or recorded in the official records of the state, county or municipality as holding title to the property; or otherwise having control of the property, including the guardian of the estate of any such person, and the executor or administrator of the estate of such person if ordered to take possession of real property by a court.
PERSON. An individual, corporation, partnership or any other group acting as a unit.
PREMISES. A lot, plot or parcel of land including any structures thereon.
Any structure that is in a state of dilapidation, deterioration or decay; faulty construction; overcrowded; open, vacant or abandoned; damaged by fire to the extent so as not to provide shelter; in danger of collapse or failure; and dangerous to anyone on or near the premises.
STRUCTURE. Anything constructed, assembled or erected, the use of which requires location on or in the ground or attachment to something having its location on or in the ground, and includes fences, tanks, swimming pools, shelters, towers, advertising devices, bins, tents, lunch wagons and trailer, dining cars or similar structures on wheels or other supports used for commercial or residential purposes; wires and their supporting poles, towers and frames of electrical or telephone utilities or service utilities entirely below the ground are also deemed to be structures.
TENANT. A person, corporation, partnership or group, whether or not the legal owner of record, occupying a building or portion thereof as a unit.
TOWN CENTER ZONE: Any property located in the Town Center (TC) Zone of the Township as delineated in the Vernon Township Zoning Map.
YARD. An open space on the same lot with a structure.
VACANT LOT: A premise that is designated by a single Block and Lot and does not contain any structure upon it. This would not include woodland lots. Woodland lots consist of several deciduous and coniferous trees of more than 10 feet in height that create closed canopies.
Every residential and nonresidential building and structure and the premises on which it is situated in the Township of Vernon used or intended to be used for residential, commercial, business or industrial occupancy shall comply with the provision of this code, whether or not the buildings shall have been constructed, altered or repaired before or after the enactment of this code and irrespective of any permits or licenses which shall have been issued for the use or occupancy or repair of equipment or facilities prior to the enactment of this code. This code establishes minimum standards for the initial and continued occupancy and use of all buildings and does not replace or modify standards otherwise established for the construction, repair, alteration or use of the building, equipment or facilities contained therein, except as provided in §447-4.
§447-4 Prevalence of higher standards.
In any case where the provisions of this chapter impose a higher standard than set forth in any other ordinance of the Township or under the laws of the State of New Jersey, then the standards as set forth herein shall prevail, but if the provisions of this chapter impose a lower standard than any other ordinance of the Township or of the laws of the State of New Jersey, then the higher standard contained in any other ordinance or law shall prevail.
§447-5 Compliance with additional standards required.
Compliance with this code shall not constitute a defense against any violation of any other ordinance of the Township applicable to any owner, operator or occupant from complying with any other provision nor any official of the Township from enforcing any other provision.
§447-6 Responsibilities of owner and operator.
Owners and operators shall have all the duties and responsibilities described in Article III of this chapter and the regulations promulgated pursuant thereto, and no owner or operator shall be relieved from any such duty and responsibility nor be entitled to defend against any charge or violation thereof by reason of the fact that the occupant is also responsible therefor and in violation thereof.
Occupants shall have all the duties and responsibilities as prescribed in Article III of this chapter and all the regulations promulgated thereto, and the occupant shall not be relieved from any such duty and responsibility and be entitled to defend against any charge of violation thereof by reason of the fact that the owner is also responsible therefor and in violation thereof.
§447-8 Contract not to alter responsibilities.
Unless expressly provided to the contrary in this chapter, the respective obligations and responsibilities of the owner and operator on one hand and the occupant on the other shall not be altered or affected by any agreement or contract by and between any of the aforesaid or between them and other parties.
Creditors responsible for the care, maintenance, security, and upkeep of the exterior of the vacant and abandoned residential property, pursuant to code § 130-2, shall be responsible for complying with this Chapter.
§447-10 Exterior of buildings and premises.
Sidewalks. No person shall sweep into or deposit in any gutter, street, catch basin or other public place any accumulation of litter or snow from any public or private sidewalk or driveway. Pursuant to N.J.S.A. 40:65-12, the owner or owners, occupant or occupants, tenant or tenants of premises abutting or bordering any streets in the Town Center Zone shall remove all snow and ice from the abutting sidewalks of such streets or, in the case of ice, which may be so frozen as to make removal impracticable, shall cause the same to be thoroughly covered with sand, salt or cinders within twenty-four (24) hours after the same shall fall or be formed thereon.
Weeds. All premises and exterior property shall be maintained free from weeds or plant growth in excess of 12 inches. All noxious weeds shall be prohibited. “Weeds” shall be defined as all grasses, annual plants and vegetation, other than trees or shrubs; provided, however, that this term shall not include cultivated flowers and gardens. This section shall not apply to vacant lots except those located within the Town Center Zone.
Accessory structures. All accessory structures, including detached garages, fences and walls, shall be structurally sound.
General exterior structure. The exterior of a structure shall be, structurally sound and sanitary so as not to pose a threat to the public health, safety or welfare based upon applicable building codes.
Structural members. All structural members shall be capable of safely supporting the imposed dead and live loads based on applicable building codes.
Roofs and drainage.. Roof drains, gutters and downspouts shall be maintained in good repair and free from obstructions. Roof water shall not be discharged in a manner that creates a public nuisance.
Overhang extensions. All canopies, marquees, signs, metal awnings, fire escapes, standpipes, exhaust ducts and similar overhang extensions shall be maintained in good repair and be properly anchored so as to be kept in a sound condition. When required, all exposed surfaces of metal or wood shall be protected from the elements and against decay or rust by periodic application of weather-coating materials, such as paint or similar surface treatment.
Stairways, decks, porches and balconies. Every exterior stairway, deck, porch and balcony, and all appurtenances attached thereto, shall be maintained structurally sound, in good repair, with proper anchorage and capable of supporting the imposed loads subject to applicable building codes.
Handrails and guards. Every handrail and guard shall be firmly fastened and capable of supporting normally imposed loads and shall be maintained in good condition as defined by applicable building codes.
Window and door frames. Every window, door and frame shall be kept in sound condition and good repair as defined by applicable building codes.
All signs permitted by reason of other regulations or as a lawful nonconforming use shall be maintained in good repair, and printed matter, pictures or illustrations contained thereon shall be completely maintained or, when no longer in use, completely removed. All non-operative or broken electrical signs shall be repaired or shall, with their supporting members, be removed forthwith.
The provisions of this chapter shall be enforced by any officer or employee whose regular duties include enforcement of building, plumbing, electrical, zoning, health, housing, safety or fire code regulations or statutes, and reference hereinafter to the enforcement officer shall be deemed to mean any such officer or employee who is acting in such capacity with respect to enforcement of this chapter.
Whenever the code enforcement officer determines that there is or has been a violation of any provision of this chapter, then notice of the violation shall be given.
Written notice of violation shall be served either by hand delivery to the property owner or operator, or by leaving a copy at his/her usual place of abode with a person not less than sixteen years of age, or by certified or registered mail, return receipt requested, to the owner at the last known address as shown on the most recent tax duplicate of the Township, or upon the operator at the property address. Should service by hand delivery or post be unsuccessful, then service shall be made by posting a copy of the notice of violation at a conspicuous place on the subject premises and by sending a copy by regular mail to the owner at the last known address as shown on the most recent tax duplicate of the Township.
Written notice of violation shall state that unless the alleged violation is abated, removed or cured within 10 days of the date of service (exclusive of the date of service), then a summons shall be issued. The code enforcement officer may, in his/her discretion, extend the time period for compliance if, in his/her judgment, it is believed that the alleged violation cannot reasonably be completely corrected within 10 days. In such case the notice of violation shall set forth the length of the time period to cure.
In the event that the alleged violation is not fully remedied within the time period stated in the notice of violation, or such additional time as code enforcement officer may afford, then a summons shall be issued against the person, persons or entities so notified. Should the same alleged violation continue unabated, the code enforcement officer may issue additional summons or summonses without the need to serve a notice of violation anew.
Whenever the enforcement officer finds that an emergency condition in violation of this chapter exists, which condition requires immediate attention in order to protect the public health or safety, he shall issue an order by service of notice as set forth in §447-13, reciting the existence of such an emergency condition and requiring that such action be taken by the violator as soon as reasonably necessary to meet the emergency. Notwithstanding any other provision of this chapter, such order shall be effective immediately. Any person to whom such an order is directed shall comply therewith immediately, but upon objection in writing to the Township Administrator, any such person shall be afforded a hearing before the Township Administrator as soon as is reasonably possible. After such a hearing and decision by the Township Administrator to the existence or nonexistence of the emergency condition, the Township Administrator may continue such order in effect, or modify or withdraw it; subject to issuance of a summons for violation hereof, such order is continued. A decision by the Township Administrator may be appealed to the Sussex County Board of Appeals, if that body has jurisdiction.
Nothing contained herein shall limit the power of the enforcement officer to take such further action under the criminal and civil laws of this state through any court of competent jurisdiction as may be necessary to remove or abate any nuisance.
Upon issuance of notice required by §447-13 and §447-14, property owners shall correct the condition and notify the enforcement officer that said condition has been corrected. An inspection shall then be made for which no fee shall be charged. Should full compliance not be achieved at the time of the inspection, the Township shall be reimbursed for cost of all reinspections by the property owner. Failure to reimburse the Township shall result in a lien for said cost being placed against the property.
Except as otherwise outlined in this chapter, any person or entity who shall violate any of the provisions of this chapter or any order promulgated hereunder shall, after summons is issued under the terms hereof, upon conviction, be punished by a fine not to exceed $2,000. Each violation of any of the provisions of this chapter and each day that each such violation shall continue may be deemed to be a separate and distinct offense.
§447-18 Assessment of Township costs to premises.
Where abatement of any nuisance as defined herein was accomplished and premises brought into compliance with this chapter through the expenditures of Township funds, such costs shall be assessed against the premises cited as a lien in the same manner as real estate taxes if ordered by the court.
Any farm assessed property that is registered with the Township and the State of New Jersey Department of Agriculture shall be exempt from this Chapter.
SECTION II. If any article, section, subsection, sentence, clause or phrase of this Ordinance is, for any reason, held to be unconstitutional or invalid, such decision shall not affect the remaining portions of this Ordinance and they shall remain in full force and effect.
SECTION III. In the event of any inconsistencies between the provisions of this Ordinance and any prior ordinance of the Township, the provisions hereof shall be determined to govern. All other ordinances of the Township are hereby ratified and confirmed, except where inconsistent with the terms hereof.
SECTION IV. This Ordinance shall take effect immediately upon final passage and publication according to law.


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Justia › US Law › US Case Law › US Supreme Court › Volume 261 › Keller v. Potomac Elec. Power Co.
1. In a proceeding brought by a public utility against the Public Utilities Commission of the District of Columbia, in the Supreme Court of the District, under par. 64 of § 8 of the Act of March 4, 1913, c. 150, 37 Stat. 974, the court is empowered not merely to decide legal questions and questions of fact as incident thereto, but also to amend, and, if need be, enlarge valuations, rates, and regulations established by the Commission which the court finds upon the record and evidence to be inadequate, and to make such order as, in its judgment, the Commission should have made. P. 261 U. S. 440.
3. Under the power "to exercise exclusive legislation in all cases whatsoever" over the District of Columbia (Const. Art. I, § 8, cl. 17), Congress may vest this jurisdiction in the courts of the District. P. 261 U. S. 442.
4. But such power cannot be conferred upon this Court, and the provision made by the above act (par. 64) for appeals here from the Court of Appeals of the District is therefore void. P. 261 U. S. 443.
the courts of the District, in new of the probable intent of Congress in this regard and the saving clause in par. 92. P. 261 U. S. 444.
6. If the provisions of the above act (pars. 65 and 69) seeking to limit the time within which recourse may be had to the courts against orders of the Commission and to put the burden of proof upon the party attacking them are unconstitutional, the remainder of the act would not be affected in new of the saving clause of par 92. P. 261 U. S. 445.
Act of October 22, 1913, 38 Stat. 219, this jurisdiction was conferred on the several district courts of the United States. This permits these courts to consider all relevant questions of constitutional power or right and all pertinent questions whether the administrative order is within the statutory authority, or is an attempted exercise or it so unreasonable as not to be within it, but these are questions of law only. Interstate Commerce Commission v. Illinois Central R. Co., 215 U. S. 452, 215 U. S. 470. Of course, the consideration and decision of questions of law may involve a consideration of controverted facts to determine what the question of law is, but it is settled that any finding of fact by the Commission, if supported by evidence, is final and conclusive on the courts. Interstate Commerce Commission v. Union Pacific R. Co., 222 U. S. 541, 222 U. S. 547. A similar distinction exists between the jurisdiction here conferred and that vested in circuit courts of appeals in reference to proceedings before the Trade Commission. Act Sept. 26, 1914, c. 311, § 5, 38 Stat. 719. The language of the act under discussion is much wider than that of the Interstate Commerce Act or of the Federal Trade Commission provisions. It brings the court much more intimately into the legislative machinery for fixing rates than does the Interstate Commerce Act. We cannot escape the conclusion that Congress intended that the court shall revise the legislative discretion of the Commission by considering the evidence and full record of the case and entering the order it deems the Commission ought to have made.
211 U.S. 211 U. S. 225; Dreyer v. Illinois, 187 U. S. 71, 187 U. S. 83-84.
Such legislative or administrative jurisdiction, it is well settled, cannot be conferred on this Court either directly or by appeal. The latest and fullest authority upon this point is to be found in the opinion of MR. JUSTICE Day, speaking for the court in Muskrat v. United States, 219 U. S. 346. The principle there recognized and enforced on reason and authority is that the jurisdiction of this Court and of the inferior courts of the United States ordained and established by Congress under and by virtue of the third article of the Constitution is limited to cases and controversies in such form that the judicial power is capable of acting on them, and does not extend to an issue of constitutional law framed by Congress for the purpose of invoking the advice of this Court without real parties or a real case, or to administrative or legislative issues or controversies. Hayburn's Case, 2 Dall. 410, note; United States v. Ferreira, 13 How. 40, 54 U. S. 52; Ex parte Siebold, 100 U. S. 371, 100 U. S. 398; Gordon v. United States, 117 U.S. 697; Baltimore & Ohio R. Co. v. Interstate Commerce Commission, 215 U. S. 216.
Some question has been made as to the validity of paragraph 65, which forbids all recourse to courts to set aside, vacate, and amend the orders of the Commission after 120 days, and of paragraph 69, which puts the burden upon the party adverse to the Commission to show by clear and satisfactory evidence the inadequacy, unreasonableness, or unlawfulness of the order complained of. It is suggested that this deprives the public utility of its constitutional right to have the independent judgment of a court on the question of the confiscatory character of an order, and so brings the whole law within the inhibition of the case of Ohio Valley Water Co. v. Ben Avon Borough, 253 U. S. 287. It is enough to say that, even if paragraphs 65 and 69 were invalid, the whole act would not fail in view of paragraph 92 already referred to. It will be time enough to consider the validity of those sections, when it is sought to apply them to bar or limit an independent judicial proceeding raising the question whether a rate or other requirement of the Commission is confiscatory. Our conclusion that the provision for appeal to this Court in paragraph 64 is invalid makes it unnecessary to decide whether the appeal must be from a final decree, or whether the decree of the Court of Appeals was final.

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June 12, 1923. Rehearing Denied June 27, 1923.
Appeal from District Court, Henderson County; L. D. Guinn, Judge.
Action by Henderson County and others against the United States Fidelity Guaranty Company and others, in which interventions were filed. From judgment for interveners, defendants appeal. Affirmed in part, in part reversed and rendered, and in part reversed and remanded.
Seay, Seay, Malone Lipscomb, of Dallas, and Miller Miller, of Athens, for appellants.
E. A. Landman, of Athens, for appellees.
"That for and in consideration of the prices and agreement mentioned in the proposal hereto attached and made part of this contract, the said contractor agrees to do at his own proper cost and expense, all the work necessary for the improvement of road bridge No. 19 in Henderson county, in accordance with the provisions of the attached notice to contractors, specifications, proposal and plans which are made part of this contract, and in full compliance with all of the terms of the specifications and requirements of the engineer."
"Contract. The agreement covering the performance of the work. It shall include the plans and specifications and shall be held to cover any or all work, labor, implements, machinery, equipment and materials that are required to complete the work indicated in a proper and satisfactory manner. Work shown on the plans and not mentioned in the specifications, or vice versa, shall be done the same as if shown by both, and in case of conflict the decision of the engineer shall be final and conclusive."
"Contractors' Bond. The contractor shall fine a guaranty of his faithful performance of said contract, a good and sufficient bond in compliance with article 5623a, Senate Bill No. 79, chapter 143 of the 34th legislature 1915, which requires that the contracts less than $1,000 a bond for full amount of contract be given, for those over $1,000 and not over $5,000, three-quarters of contract price, and those over $5,000, and not over $100,000, one-half contract price, those over $100,000 one-third contract price be given. Said bond to be furnished by a surety company authorized to do business in the state of Texas, or responsible persons acceptable to party of the first part. In the latter instance, it is necessary that those signing bond be certified as financial solvent to full amount of bond."
"Contractors' Bond. `Know all men by these presents: that we, Williams, Burk Co., of Jacksonville, Cherokee county, and state of Texas, principal, and United States Fidelity Guaranty Company of Baltimore, Md., as surety, are held and firmly bound unto the county of Henderson, state of Texas, in the penal sum of forty-three thousand two hundred twelve and 32/100 dollars ($43,212.32) lawful money to the United States, to be paid to said county or to its certain attorneys or assigns, for which sums of money, well and truly to be paid, we bind ourselves, our heirs, successors, executors, and administrators, jointly and severally, firmly by these presents.
"Sealed with our seals and dated this eighth day of January, A.D. 1920.
"The condition of this obligation is such that if the said bounden principal Williams, Burk Co. shall in all things well and truly perform all the terms and conditions of the aforegoing contract, to be by them him performed, and within the time therein mentioned, and shall pay all lawful claims for labor performed in and about the construction of said road bridge, and shall have paid and discharged all liabilities for injuries which have been incurred in and about the said construction, under the operation of the statutes of the state, then this obligation is to be void; otherwise to be and remain in full force and virtue.
"I certify that the above is a true and correct copy of the original. Chas. H. Kendall, Asst. State Hwy. Engr. [Seal.]"
As the contractors did not complete the work to the satisfaction of Henderson county, it took charge of the work and had it completed by other contractors and then filed suit against the original contractors and their surety on the foregoing bond. After the suit was filed, a large number of claimants intervened upon the allegation that the contractors and their sureties were liable to them upon the bond for labor and material furnished in the construction of the road. Pending trial, the contractors and the surety company settled the claim of Henderson county under a compromise agreement, by the terms of which they paid the county $8,000, which agreement was embodied in a judgment duly entered of record. W. R. Bishop, the regular district judge of Henderson county, was disqualified to try this case, and upon his certificate to that effect, the Governor designated Judge L. D. Guinn of the Second district, who proceeded to try the case on the 10th day of April, 1922, at a special term of the court called by Judge Bishop. This appeal is prosecuted by the contractors and their surety from a judgment entered against them in favor of the several interveners upon the answers of the jury to special issues. The transcript in this case contains about 1,000 pages, the statement of facts 260 pages, and the briefs about 500 pages. Appellants are urging 123 assignments of error, and appellees many crossassignments. While under one style and number, this appeal, in effect, embodies about 30 different records, relating to the several interveners, many of them presenting questions peculiar to the several interventions, Manifestly, it is impracticable to take up appellants' many assignments and discuss them as they relate to each intervention. We believe it is sufficient to dispose of this appeal by discussing the general propositions involved and then relate them to the several interventions, as hereinafter indicated.
The court did not err in overruling appellants' plea of abatement, which they urged upon the proposition that under articles 6394f and 6394j, Texas Complete Statutes (Vernon's Sayles' Ann.Civ.St. 1914, arts. 6394f, 6394j), this suit could not be tried until twelve months after the completion of the work. We could dispose of this proposition upon the ground that appellants have made no statement showing when the work was completed. The record shows that service was complete upon defendants at the August term, 1921, and as the case was not tried until April 10, 1922, it may be the work had been completed more than twelve months when the case was tried. But, under the cited articles, the court did not err in refusing to abate the suit. These articles provide that claimants under the bond of a public contractor must institute their suit or intervene in the suit of the state or municipality within twelve months after the completion of the work. It is also provided that the suit cannot be tried until one week after the completion of three weeks' publication of notice of the pendency of such suit. It is conceded that the notice was published and that more than one week had elapsed after such publication before the case was tried. The requirement that the lis pendens notice be published constitutes a limitation upon the time within which interventions may be filed. While, in general terms, it is provided that such interventions may be filed within one year from the completion of the work, yet giving effect to all the provisions of the act, the statute requires that they be filed before the case is tried, and if the case is tried after due publication of lis pendens notice has been made, all interventions not filed are barred, though the one-year period of limitation has not matured. We have not been cited to any decision of this state construing the articles cited supra, but they are in identical terms, as to their conditions and obligations, with section 6923, United States Compiled Statutes. We have given to our statute the same construction given by the federal courts to that article. Bank v. United States, 214 F. 200, 130 C.C.A. 548; Baker Contract Co. v. United States, 204 F. 390, 122 C.C.A. 560; United States v. Wells (D.C.) 203 F. 146; Illinois Surety Co. v. United States, 212 F. 136, 129 C.C.A. 584; United States v. Illinois Surety Co., 228 F. 304, 142 C.C.A. 596; Pederson v. United States, 253 F. 622, 165 C.C.A. 248.
Judge Bishop's disqualification to try this case did not disqualify him to call the special term of court at which it was tried. The call for the special term was general, for the trial of all cases on the docket, and was not limited to this case, nor any other particular case or cases. The call for the special term was not an order or judgment in this case, but was an exercise of a constitutional and statutory authority inherent in him as the regular judge of Henderson county in relation to terms of court for that county. No other judge had authority to call a special term of court for Henderson county.
While article 5623a (Vernon's Ann.Civ.St.Supp. 1918, art. 5623a) was referred to in the plans and specifications, which required that the bond be executed under its provisions, we think the reference to that article was merely incidental and obvious error. When the conditions of the contract and bond are examined in the light of the several statutes of this state, we think it clearly appears that article 6394f was meant, because that article alone has relation to public contracts. Article 5623a refers to private contracts. The conditions of the bond and contract, as executed, are the conditions of article 6394f, and not of article 5623a. Therefore, in construing the contract and bond, the reference to article 5623a should be disregarded and the contract construed in the light of and by the terms of article 6394f. Trinity Portland Cement Co. v. Lion Bonding Co. (Tex.Com.App.) 229 S.W. 483.
"The Circuit Court of Appeals deemed immaterial the special circumstances under which the supplies were furnished and the findings of fact by the trial court that they were necessary to and wholly consumed in the prosecution of the work provided for in the contract and bond. In our opinion these facts are not only material, but decisive. They establish the conditions essential to liability on the bond. The bare fact that the supplies were furnished to the contractor and were consumed by workmen in its employ would have been immaterial. A boarding house might be conducted by the contractor (like some company stores concerning which states have legislated. Keokee Consol. Coke Co. v. Taylor, 234 U.S. 224, 58 L.Ed. 1288, 34 Sup.Ct.Rep. 856) as an independent enterprise undertaken solely in order to utilize the opportunity for separate and additional profit afforded by the congregation of many laborers in the particular locality where the public work is being performed. The laborers might resort to such a boarding house in the exercise of individual choice in the selection of an eating place. Under such circumstances the furnishing of supplies would clearly be a matter independent of the work provided for in the contract, and would not entitle him who had furnished the groceries used in the boarding house to recover on the bond. But here, according to the undisputed facts and the findings of the trial court, the furnishing of board by the contractor was an integral part of the work and necessarily involved in it. Like the supplying of coal to operate engines on the dredges, it was indispensable to the prosecution of the work, and it was used exclusively in the performance of the work. Groceries furnished to a contractor under such circumstances and consumed by the laborers, are materials supplied and used in the prosecution of the public work. The judgment of the Circuit Court of Appeals is therefore reversed and that of the District Court affirmed."
"The judgment is reversed, and the cause is remanded for further proceedings in conformity with this opinion."
See, also, City of Portland v. New England Casualty Co., 96 Or. 48, 189 P. 211.
In this case, it was not made to appear, either by pleadings or proof, that any necessity existed such as was reflected in the Brogan Case, supra, requiring the contractors and subcontractors to furnish board and lodging for their employees. Therefore, under the authority of that case, the court erred in overruling appellants' exceptions to the interventions based on grocery bills, and having overruled all exceptions, he again erred, when the facts developed, in submitting such issues to the jury. But we think the evidence fully sustains a necessity for the use of mules upon the work, and that the item of feed bills comes within the rule announced in Hastings Co. v. Lowrance, supra. The court correctly overruled all exceptions against such items, and permitted them to go to the jury. However, on the whole record, as presented to us, we are unable to say what part of the claims of LaRue Barron Company, L. E. Cook, and J. F. Ash as an assignee of L. E. Cook, were for groceries and how much for feed bills. The judgments then in favor of these parties will have to be reversed and their claims remanded for a new trial, with instructions to the trial court to exclude all items listed on their interventions except those for feed. It appearing that the interventions of Athens National Bank, Jeff Lewis, and W. C. Maxwell are wholly for groceries, the judgment of the trial court in their favor is here reversed and judgment rendered against them. And it appearing that the interventions of B. F. Garlington and Robinson Bros. are entirely composed of feed items, it is ordered that the judgment of the trial court in their favor be affirmed; and it further appearing that J. F. Ash intervened setting up an account for feed sold by him on which there was a balance due of $2,070.60, as found by the jury, and on which judgment was entered in his favor, it is ordered that such judgment be affirmed.
"In order to recover upon an assignment of a chose in action, it is essential that plaintiff establish: First, that there was a cause of action; second, that it was such a cause of action as could be assigned; and, third, that it has been assigned."
"After having disclosed that the transfer was in writing, however, oral proof of the assignment would be rejected, on the ground that it was not the best evidence."
We have reversed the interventions by our order supra to which this assignment relates, but upon a new trial this portion of the evidence should be given effect.
The contractors and their surety were primarily liable to all who furnished material "required to complete the work" within the terms of the contract and bond. It follows then that the court did not err in giving holders of such claims judgment against appellants without requiring them first to exhaust their remedy against the subcontractors who purchased such material.
The issue was raised that A. W. Perdue did the work and furnished the material which formed the basis of his intervention as a contractor and not as an employee of B. B. Johnson. While it appeared that Johnson was the owner of the teams and tools and was to receive from Perdue, as rent for such teams, all above a certain sum, yet Perdue was to have charge of the teams, do the work, pay all the expenses, collect for the service, and pay Johnson the balance, if any, above the agreed amount. Under this contract, he did the work, expended the money, and purchased the material which formed the basis of his intervention. No error was committed in submitting his claim to the jury, nor in its trial. Therefore the judgment in his favor is affirmed.
The contract, construed in connection with the plans and specifications which were made a part thereof, provided that the original contractors could not sublet the work without the written consent of the state highway engineer. The fact that this consent was not secured, and that a large part of the work was done by subcontractors without that consent, did not release the United States Fidelity Guaranty Company from its suretyship. This provision was for the protection of Henderson county and was not a condition of the suretyship of the United States Fidelity Guaranty Company. By accepting the work of the subcontractors without protest, this provision was waived by Henderson county. The testimony, therefore, of J. M. Royal, one of the "special commissioners of the road bond," and his two associates, to the effect that they did not require the subcontractors to secure the written consent of the state highway commissioner, was not prejudicial to any interest or right of the surety company.
While as an abstract proposition the court erred in permitting interveners to offer in evidence the compromise judgment between the contractors and Henderson county, it was an immaterial error, and on the facts of this case, as a matter of law, did not prejudice the rights of appellants. The court correctly instructed the jury that appellants were liable for all material required to complete the construction of the road. The only issue for the jury was the amount or balance due on each intervention for such material. On that issue, the admission of the compromise judgment could not have prejudiced appellants.
"You are charged that under the contract introduced in evidence signed by the county and Williams, Burk Co. and the bond made by the United States Fidelity Guaranty Company, is such a contract and bond as a cause of action can be maintained upon, and that if Williams, Burk Co. failed to complete the road in accordance with such contract or failed to pay off the labor or material in the completion of such road, that both Williams, Burk Co. and the surety company are liable to any party furnishing labor or material for building or constructing such road."
This charge was not upon the weight of the evidence, nor open to the construction that the jury were authorized to find in favor of an intervener even though his claim may have been paid in full. In this connection, we overrule all of appellants' exceptions to the issues as submitted to the jury. They were not upon the weight of the evidence.
Appellants specially plead that a novation was made in the contract after the execution of the bond, whereby a large amount of work within the corporate limits of the city of Athens was added to the original contract. This issue was properly submitted to the jury and found by it against appellants' contention. The finding is fully supported by the evidence.
Of course, appellants advance a sound proposition — and the court so charged the jury — when they say that the burden rested upon each intervener to show that the items sued for by him were actually used in the construction of the road. They attack the judgment in favor of many of the interveners on the ground that the evidence does not show that their supplies were used in the construction of the road. This assignment is directed against those interveners whose judgment we have reversed and remanded and those we have reversed and rendered, as well as the Hawn Lumber Company and the personal claim of J. F. Ash, whose judgment we affirmed. It is not necessary to discuss the evidence as to these interventions which we have reversed and remanded and reversed and rendered. We think the testimony is sufficient, without quoting it, to raise that issue in favor of J. F. Ash. Appellants make the statement that no evidence was offered connecting the claim of Hawn Lumber Company with the construction of the road. This statement is not controverted by the appellees, though they have filed a long brief herein. Therefore the judgment in its favor must be reversed and remanded, because without support.
We sustain the cross-assignments of J. F. Ash, Hawn Lumber Company, LaRue Barron Company, Williford Lumber Company, and Dean Jackson, whereby they complain of the action of the court in refusing to submit certain of their claims to the jury. While the evidence was not conclusive on the issue that the items furnished by them were used in the construction of the road, we believe the issue was raised.
What we have said disposes of all of appellants' assignments of error, and propositions thereunder, and appellees' crossassignments, in so far as we understand them in their relation to the several interventions. The judgment of the trial court is affirmed as to all interventions not discussed by name.
Affirmed in part, in part reversed and rendered, and in part reversed and remanded.
"The taking of the appellate proceeding by one party relieves his adversary of the necessity of taking like action and brings the judgment before the appellate court for revision upon the complaints of both, and either has the right to point out errors in it prejudicial to him."
"Appellee may file and insist upon cross-assignments of error without giving appeal bond."
See, also, other authorities cited in connection with the rule.
No judgment was entered against appellant United States Fidelity Guaranty Company for any sum in favor of Dean Jackson and Williford Lumber Company. While it has appealed from that part of the judgment against it in favor of the other interveners, they did not attempt to appeal from the judgment in their favor against Jackson and Williford Lumber Company. As we understand our rules of appellate procedure, Jackson and Williford Lumber Company cannot cross-assign error against the United States Fidelity Guaranty Company. Their only relief against the judgment denying them a recovery was by an independent appeal, which they did not attempt to perfect.
"Where a defendant appeals from a judgment for plaintiff, plaintiff must file a cross-appeal from a judgment for a codefendant before he can assign cross-errors complaining of the judgment for the codefendant."
Again, appellants object to our considering the cross-assignment of the Williford Lumber Company on the ground that its plea of intervention is not in the transcript. We think this omission on its part to have its plea included in the transcript bars us from reviewing its assignments.
But on their merits these assignments cannot be sustained. A part of the J. F. Ash intervention, based on the L. E. Cook account, was for money in the sum of $250 advanced to pay for the labor on highway No. 19. No showing is made that the laborers were a party to this transaction, nor that they made an assignment of their labor claims to intervener. LaRue Barron were denied a recovery for a $75 item of the Cook account held and pleaded by them, which was for money advanced to pay labor claims. These items were correctly excluded by the trial court. Under the facts as stated, the labor claims were extinguished when paid and cannot now be urged under the theory of an equitable assignment. Hess Skinner v. Turney, 110 Tex. 148, 216 S.W. 621; Lion Bonding Surety Co. v. First State Bank of Paris (Tex. Civ. App.) 194 S.W. 1012.
"The court erred in refusing to grant J. F. Ash judgment against J. A. McNeill in the sum of $245 for the reason that the jury found that J. A. McNeill owed J. F. Ash for this much feed purchased after McNeill ceased to work upon highway No. 19, and both J. F. Ash and J. A. McNeill were parties to the suit."
Certainly it could not be said that there was any relation between Ash's demand against McNeill and his demand against the appellants. Ash did not perfect any appeal against the ruling of the court denying him judgment against McNeill. The appeal by these appellants did not have the effect of removing to our jurisdiction the judgment denying Ash a recovery in so far as he asserted a demand against McNeill. Stewart v. Toler Daniel (Tex. Civ. App.) 250 S.W. 274, and authorities cited supra.
"The court erred in not granting Hawn Lumber Company a judgment against the defendant United States Fidelity Guaranty Company in the sum of $265.35, instead of only $35.03, for the reason that the entire Hawn account was for lumber sold to the contractors for use in building highway No. 19."
"The court erred in refusing to grant judgment against the defendant United States Fidelity Guaranty Company and in favor of Williford Lumber Company in the sum of $45.10 for the reason that the account was for material necessary in the prosecution of the work on highway No. 19."
"From the pleadings and the evidence the court found that the contractors owed Hawn Lumber Company $265.35, but that only $35.03 was for lumber used in the building of the highway. The court further found that the remainder of the account was for lumber used to build forms for concrete, and that the surety company was not liable for lumber used to build forms. A motion for judgment against the surety company for the full amount was overruled.
"The court also found that Williams, Burk Co. owed Williford Lumber Company $45.10 for material and granted judgment for this amount, And for the reason that it was for lumber for concrete forms overruled a motion asking for judgment against the defendant United States Fidelity Guaranty Company."
"The only witness who attempted to testify with reference to this account (the account of the Hawn Lumber Company) was Dan Webster, and in his testimony he stated that the lumber in question was used for making dump boards, wagon beds, toolhouse and other permanent equipment of the party purchasing the same. * * * No, I don't know what happened to any of this stuff after it left the yard. All I know is when I delivered it to the teams."
"The only witness who attempted to testify with regard to same was R. L. Williford, and his testimony shows that all of these items consisted of lumber used to make gravel pits and a trapdoor to be used in loading gravel, all of which was permanent equipment of the party purchasing the same."
(9) "The court erred in refusing to grant Dean Jackson a judgment against the defendants Williams, Burk Co. in the sum of $422.25, instead of only $25.75, and in refusing to grant judgment against defendant United States Fidelity Guaranty Company in the sum of $422.25 as surety of Williams, Burk Co., for the reason that the court found from the evidence that the work done by Dean Jackson was necessary in the prosecution of the work on highway No. 19, and the principal, Williams, Burk Co., had by their contract agreed to pay for all labor required to complete the work, and the defendant United States Fidelity Guaranty Company guaranteed the faithful performance of the contract and both Williams, Burk Co. and their surety, United States Fidelity Guaranty Company, are liable under the contract for the full amount of $422.25 for work done by Dean Jackson necessary in the prosecution of the work on Highway No. 19."
(10) "The court erred in refusing to grant Dean Jackson a judgment against the defendant Williams, Burk Co. in the sum of $422.25 instead of only $25.75, and in refusing to grant judgment against defendant United States Fidelity Guaranty Company in the sum of $422.25 as the surety of Williams, Burk Co. for the reason that the court found from the evidence that the work was done by Dean Jackson, was necessary in the prosecution of the work on Highway No. 19, and the principal Williams, Burk Co. and their surety, United States Fidelity Guaranty Company, are both liable for said work for the reason that the statute makes them liable and no party to the contract and no surety company can waive the provisions of the statute."
"The court heard the pleadings and the evidence and found that Dean Jackson (a blacksmith) had done work upon tools and equipment necessary in the construction of highway No. 19, and amounting to the sum of $422.25. The court further found that only $25.75 of this amount had been done for Williams, Burk Co. direct, and entered judgment against them for this amount, and refused judgment against them for the remainder, and also refused to enter judgment against the surety company for the $422.25 for the reason that the bond did not cover work on tools and equipment."
"The intervener, Dean Jackson, filed a claim in this suit, setting up various items in the nature of repair bills. His uncontradicted testimony was as follows: `This work was in the nature of repair work to their plows and tools and equipment that they were using out there on the road.'"
The following authorities condemn this claim: Standard Boiler Works v. National Surety Co., 71 Wn. 25, 127 P. 573, 43 L.R.A. (N. S.) 162; Alpena ex rel. Besser v. Title Gty. Surety Co., 159 Mich. 329, 123 N.W. 1126; Alpena ex rel. O'Brien v. Title Gty. Surety Co., 159 Mich. 334, 123 N.W. 1127; Empire State Surety Co. v. Des Moines, 152 Iowa 552, 131 N.W. 870, 132 N.W. 837; U.S., Use of Briscoe, v. City Trust S.D. S. Co., 23 App.D.C. 155; National Surety Co. v. U.S., Use of Pitts. Buff. Co., 228 F. 577, 143 C.C.A. 99, L.R.A. 1917A, 336.
"In none of our own cases, so far as we have been able to discover, have we discussed the item of repairs, but we find the general rule to be that no recovery can be had for machinery used in the prosecution of the work. `The contract presupposes that the contractor has and will furnish upon his own account the necessary tools, implements, and appliances with which to perform the work.' Kansas City, Use of Kansas City Hydraulic Press Brick Co., v. Youmans, 213 Mo. 151, 112 S.W. 225. The logical consequence of this holding is that repairs put upon such machinery do not come within the protection of the law. Empire State Surety Co. v. Des Moines, 152 Iowa 531, 131 N.W. 870, 132 N.W. 837; Alpena ex rel. Besser v. Title Guaranty S. Co., 159 Mich. 329, 123 N.W. 1126; Alpena ex rel. O'Brien v. Title Guaranty S. Co., 159 Mich. 334, 123 N.W. 1127; Alpena ex rel. Beaudrie v. Murray Co., 159 Mich. 336, 123 N.W. 1128; United States, Use of Sica, v. Kimpland (C. C.) 93 F. 403; United States, Use of Chapman, v. City Trust, S.D. Surety Co., 23 App.D.C. 153; Philadelphia, Use of Taylor, v. Malone, 214 Pa. 90, 63 A. 539; Beals v. Fidelity D. Co., 76 A.D. 526, 78 N.Y.S. 584. In United States, Use of Chapman, v. City Trust, S.D. Surety Co., 23 App.D.C. 153, which involved the right to recover for repairs to a dredge used upon a public work, it was held: We regard the question as too plain to require any elaboration of argument. As well might the person who constructed the dredging machine in the first instance seek to hold the surety liable, as the person who afterwards makes repairs in order to constitute the machine what it ought to be.
"Our conclusion is that a contractor is presumed to be prepared with machinery and appliances necessary to do his work; that such items are furnished upon his credit, and not upon the implied credit of the public; and that repairs, if made, will be paid out of the profits of the undertaking. `Certainly the city could not under any circumstances be subjected to the payment out of the contract price or otherwise for the working equipment procured by the contractor and used by him in carrying on the work. It cannot be assumed that the contract price for the work covered, as a part of the cost, the purchase of the working equipment, which might have been previously used or might be subsequently employed by the contractor in carrying on other work of like character.' Empire State Surety Co. v. Des Moines, 152 Iowa 549, 131 N.W. 877."
Appellants complain of our disposition of their propositions of error on the admission of evidence on the issue of assignments of the claims asserted by certain interveners. As we understand the record, we sustained appellants' propositions in so far as the court heard parol evidence when it appeared that the assignments were in writing. We think the evidence clearly sustains the finding that the other interventions were held under equitable assignments. While the court may have erred in not requiring the interveners to plead more particularly the nature of their assignments, when the proof was offered on this issue, no suggestion of surprise was made. Thus it does not appear that appellants suffered any injury because of the ruling of the trial court on their special exceptions. In the original opinion we said that it was the duty of appellants to ask for a more particular plea by way of special exception. We are now conceding appellants' contention that such exceptions were made by them, but are overruling their propositions under Rule 62a (149 S.W. x).
Our judgment in disposing of this case is modified only to the extent of overruling all cross-assignments of error and affirming the judgment of the trial court in denying recovery to J. F. Ash, Hawn Lumber Company, LaRue Barron Company, Williford Lumber Company, and Dean Jackson on the matters asserted by their cross-assignments.


Argued: Jan. 9, 10, 1923.
Messrs. Walter C. Noyes and H. T. Newcomb, both of New York City, for appellants.
Mr. H. A. Taylor, of New York City, for Erie R. Co. and others.
Mr. Alexander H. Elder, of New York City, for Central R. Co. of New Jersey.
Mr. Charles F. Choate, Jr., of Boston, Mass., for Boston & M. R. R.
Mr. Walker D. Hines, of New York City, for Interstate Commerce Commission.
Transportation Act 1920, c. 91, § 418, 41 Stat. 456, 486, amending Interstate Commerce Act, § 15(6), authorizes the Commission, upon complaint or upon its own initiative, to prescribe, after full hearing, the divisions of joint rates among carriers parties to the rate. In determining the divisions, the Commission is directed to give due consideration, among other things, to the importance to the public of the transportation service rendered by the several carriers; to their revenues, taxes, and operating expenses; to the efficiency with which the carriers concerned are operated; to the amount required to pay a fair return on their railway property; to the fact whether a particular carrier is an original, intermediate, or delivering line; and to any other fact which would, ordinarily, without regard to the mileage haul, entitle one carrier to a greater or less proportion than another of the joint rate.
Invoking this power of the Commission, the railroads of New England 1 instituted, in August, 1920, proceedings to secure for themselves larger divisions from the freight moving between that section and the rest of the United States, the joint rates on which had just been increased pursuant to the order entered in Ex parte 74, Increased Rates, 1920, 58 I. C. C. 220. More than 600 carriers of the United States, mostly railroads, were made respondents. The case was submitted on voluminous evidence. On July 6, 1921, a report was filed. The relief sought was not then granted; but no order was entered. Instead, the parties were directed by the report to proceed individually to readjust their divisional arrangements, and the record was held open for submission of the readjustment. New England Divisions, 62 I. C. C. 513. This direction was not acted on. Five months later the case was reargued upon the same evidence. On January 30, 1922, the Commission modified its findings and made an order (amended March 28, 1922) which directed, in substance, that the divisions, or shares, of the several New Engl nd railroads 2 in the joint through freight rates be increased 15 per cent. New England Divisions, 66 I. C. C. 196. Since it did not increase any rate, it necessarily reduced the aggregate amounts receivable from each rate by carriers operating west of Hudson river. The order was limited to joint class rates and those joint commodity rates which are divided on the same basis as the class rates. 3 It related only to transportation wholly within the United States. It was to continue in force only until further order of the Commission, and it left the door open for correction upon application of any carrier in respect to any rate.
Prior to the effective date of that order, there was in force between each of the New England carriers and substantially each of the railroads operating west of the Hudson, a series of contracts providing for the division of all joint class rates upon the basis of stated percentages. 4 These agreements were in the form of express contracts. Section 208(b) of Transportation act of 1920 provided that all divisions of joint rates in effect at the time of its passage should continue in force until thereafter changed either by mutual agreement between the interested carriers or by state or federal authorities. The second report enjoined upon all parties the necessity for proceeding, as expeditiously as possible, with a revision of divisions upon a more legical and systematic basis, made specific suggestions as to the character of the study to be pursued, and invited carriers to present to the Commission any cases of inability to agree upon such revision. No further application was, however, made to the Commission.
In March, 1922, this suit was commenced in the federal court for the Southern District of New York to enjoin enforcement of the order and to have it set aside as void. The Akron, Canton & Youngstown Railway and 43 other carriers 5 joined as plaintiffs, suing on behalf of themselves and others similarly situated. The United States alone was named as defendant. But the Interstate Commerce Commission and 10 New England carriers intervened as such and filed answers. The case was then heard, on application for an interlocutory injunction, by three judges, under the provisions of Urgent Deficiencies Act Oct. 22, 1913, c. 32, 38 Stat. 208, 219 (Comp. St. § 998). The full record of the proceedings before the Commission, including all the evidence, was introduced. The injunction was denied (D. C. 282 Fed. 306), and the case is here by direct appeal. Plaintiffs urge six reasons why the order of the Commission should be held void.
First. It is contended that the order is void, because its purpose was not to establish divisions just, reasonable, and equitable, as between connecting carriers, but, in the public interest, to relieve the financial needs of the New England lines, so as to keep them in effective operation. The argument is that Congress did not authorize the Commission to exercise its power to accomplish that purpose. An order, regular on its face, may, of course, be set aside if made to accomplish a purpose not authorized. Compare Southern Pacific Co. v. Interstate Commerce Commission, 219 U. S. 433, 443, 31 Sup. Ct. 288, 55 L. Ed. 283. But the order here assailed is not subject to that infirmity.
Transportation Act 1920, introduced into the federal legislation a new railroad policy. Railroad Commission of Wisconsin v. Chicago, Burlington & Quincy R. R. Co., 257 U. S. 563, 585, 42 Sup. Ct. 232, 66 L. Ed. 371. Theretofore, the effort of Congress had been directed mainly to the prevention of abuses, particularly those arising from excessive or discriminatory rates. The 1920 act sought to insure, also, adequate transportation service. That such was its purpose Congress did not leave to inference. The new purpose was expressed in unequivocal language. 6 And, to attain it, new rights, new obligations, new machinery, were created. The new provisions took a wide range. 7 Pro inent among them are those specially designed to secure a fair return on capital devoted to the transportation service. 8 Upon the Commission new powers were conferred, and new duties were imposed.
The credit of the carriers, as a whole, had been seriously impaired. To preserve for the nation substantially the whole transportation system was deemed important. By many railroads funds were needed, not only for improvement and expansion of facilities, but for adequate maintenance. On some, continued operation would be impossible, unless additional revenues were procured. A general rate increase alone would not meet the situation. There was a limit to what the traffid would bear. A 5 per cent. increase had been granted in 1914, The Five Per Cent. Case, 31 I. C. C. 351; Id., 32 I. C. C. 325; 15 per cent. in 1917, The Fifteen Per Cent. Case, 45 I. C. C. 303; 25 per cent. in 1918, General Order of Director General, No. 28. Moreover, it was not clear that the people would tolerate greatly increased rates (although no higher than necessary to produce the required revenues of weak lines), if thereby prosperous competitors earned an unreasonably large return upon the value of their properties. The existence of the varying needs of the several lines and of their widely varying earning power was fully realized. It was necessary to avoid unduly burdensome rate increases and yet secure revenues adequate to satisfy the needs of the weak carriers. To accomplish this two new devices were adopted: The group system of rate making and the division of joint rates in the public interest. Through the former, weak roads were to be helped by recapture from prosperous competitors of surplus revenues. Through the latter, the weak were to be helped by preventing needed revenue from passing to prosperous connections. Thus, by marshaling the revenues, partly through capital account, it was planned to distribute augmented earnings, largely in proportion to the carrier's needs. This, it was hoped, would enable the whole transportation system to be maintained, without raising unduly any rate on any line. The provision concerning divisions was, therefore, an integral part of the machinery for distributing the funds expected to be raised by the new ratefixing sections. It was, indeed, indispensable.
The deficiency in income of the New England lines in 1920 was so great that (even before the raise in wages ordered by the Railroad Labor Board) an increase in freight revenues of 47.40 per cent. was estimated to be necessary to secure to them a fair return. On a like estimate, the increased revenues required to give the same return to carriers in Trunk Line Territory was only 29.76 per cent. and to carriers in Central Freight Association Territory 24.31 per cent. 10 To have raised the additional revenues needed by the New England lines wholly by raising the rates within New Englandparticularly when rates west of the Hudson were raised much lessmight have killed New England traffic. Rates there had already been subjected (besides the three general increases mentioned above) to a special increase, applicable only to New England, of about 10 per cent. in 1918. Proposed Increases in New England, 49 I. C. C. 421. A further large increase in rates local to New England would, doubtless, have provoked more serious competition from auto trucks and water carriers. For hauls are short and the ocean is near. Instead of erecting New England into a separate rate group, the Commission placed it, with the other two subdivisions of Official Classification Territory, into the Eastern Group, and ordered that freight rates in that group be raised 40 per cent. At that rate level the revenues of the carriers in Trunk Line and Central Freight Association territories would, it was asserted, exceed by 1.48 per cent. what they would have received if they had been a separate group. It was estimated that the excess would be about $25,000,000. 11 Substantially that amount (besides the additional revenue to be raised otherwise) was said to be necessary to meet the needs of the New England lines.
Second. It is contended that if the act be construed as authorizing such apportionment of a joint rate on the basis of the greater needs of particular carriers it is unconstitutional. There is no claim that the apportionment results in confiscatory rates, nor is there in this record any basis for such a contention. The argument is that the division of a joint rate is essentially a partition of property; that the rate must be divided on the basis of the services rendered by the several carriers; that there is no difference between taking part of one's just share of a joint rate and taking f om a carrier part of the cash in its treasury; and, thus, that apportionment according to needs is a taking of property without due process. But the argument begs the question. What is its just share? It is the amount properly apportioned out of the joint rate. That amount is to be determined, not by an agreement of the parties or by mileage. It is to be fixed by the Commission; fixed at what that board finds to be just, reasonable, and equitable. Cost of the service is one of the elements in rate making. It may be just to give the prosperous carrier a smaller proportion of the increased rate than of the original rate. Whether the rate is reasonable may depend largely upon the disposition which is to be made of the revenues derived therefrom.
What the Commission did was to raise the additional revenues needed by the New England lines, in part, directly, through increase of all rates 40 per cent. and, in part, indirectly, through increasing their divisions on joint rates. In other words, the additional revenues needed were raised partly by a direct, partly by an indirect tax. It is not true, as argued, that the order compels the strong railroads to support the weak. No part of the revenues needed by the New England lines is paid by the western carriers. All is paid by the community pursuant to the single rate increase ordered in Ex parte 74. If, by a single order, the Commission had raised joint rates throughout the Eastern group 40 per cent., and, in the same order, had declared that 90 per cent. of the whole increase in the joint rates should go to the New England lines (in addition to what they would receive under existing divisions), clearly nothing would have been taken from the Trunk Line and Central Freight Association carriers, in so ordering. The order entered in Ex parte 74 was at all times subject to change. The special needs of the New England lines were at all times before the Commission. That these needs were met by two orders, instead of one, is not of legal significance. The order here in question may properly be deemed a supplement to, or modification of, that entered in Ex parte 74.
Third. It is asserted that the order is necessarily based upon the theory that, under section 15(6), the Commission has authority to fix divisions as between groups of carriers without considering the carriers individually; that Congress did not confer such authority; and that, hence, the order is void. Whether Congress did confer that authority we have no occasion to consider; for it is clear that the Commission did not base its order upon any such theory. The order directs a 15 per cent. increase in the divisions to the several New England lines. It is comprehensive. But it is based upon evidence which the Commission assumed was typical in character, and ample in quantity, to justify the finding made in respect to each division of each rate of every carrier. Whether the assumption was well founded will be discussed later. Here we are to consider merely, whether Congress authorized the method of proof and of adjudication pursued, and whether it could authorize it, consistently with the Constitution.
Obviously, Congress intended that a method should be pursued by which the task, which it imposed upon the Commission, could be performed. The number of carriers which might be affected by an order of the Commission, if the power granted were to be exercised fully, might far exceed 600; the number of rates involved, many millions. The weak roads were many. The need to be met was urgent. To require specific evidence, and separate adjudication, in respect to each division of each rate of each carrier, would be tantamount to denying the possibility of granting relief. We must assume that Congress knew this; and that it knew, also, that the Commission had been confronted with similar situations in the past and how it had dealt with them.
That there is no constitutional obstacle to the adoption of the method pursued is clear. Congress may, consistently with the due process clause, create rebuttable presumptions. Mobile, Jackson & Kansas City R. R. Co. v. Turnipseed, 219 U. S. 35, 31 Sup. Ct. 136, 55 L. Ed. 78, 32 L. R. A. (N. S.) 226, Ann. Cas. 1912A. 463; Lindsley v. Natural Carbonic Gas. Co., 220 U. S. 61, 31 Sup. Ct. 337, 55 L. Ed. 369, Ann. Cas. 1912C, 160; and shift the burden of proof, Minneapolis & St. Louis R. R. Co. v. Railroad & Warehouse Commission, 193 U. S. 53, 24 Sup. Ct. 396, 48 L. Ed. 614. It might, therefore, have declared in terms that, if the Commission finds that evidence introduced is typical of traffic and operating conditions, and of the joint rates and divisions, of the carriers of a group, it may be accepted as prima facie evidence bearing upon the proper divisions of each joint rate of every carrier in that group. Congress did so provide, in effect, when it imposed upon the Commission the duty of determining the divisions. For only in that way could the task be performed. As pointed out in Railroad Commission of Wisconsin v. Chicago, Burlington & Quincy R. R. Co., 257 U. S. 563, 579, 42 Sup. Ct. 232, 66 L. Ed. 371, serious injustice to any carrier could be avoided, by availing of the saving clause which allows anyone to except itself from the order, in whole or in part, on proper showing.
Fourth. It is asserted that the order directs a transfer of revenues of the Western carriers to the New England carriers, pending a decision in the matter of divisions; that Congress has not granted authority to take such provisional action; and that, hence, the order is void. The argument is, that under section 15(6), the Commission may prescribe divisions only when, upon full hearing, it is of opinion that those existing are, or will be, unjust, unreasonable or inequitable; that in such event it shall prescribe divisions which are just, reasonable and equitable; and that the provisional character of the order demonstrates that the hearing has not been a full one. Whether a hearing was full, must be determined by the character of the hearing, not by that of the order entered thereon. A full hearing is one in which ample opportunity is afforded to all parties to make, by evidence and argument, a showing fairly adequate to establish the propriety or impropriety, from the standpoint of justice and law, of the step asked to be taken. The Commission recognized, and observed, these essentials of a full hearing.
The complaint before it was filed in August, 1920. The hearings did not begin until December 15, 1920. The parties had, therefore, ample time to prepare to present their evidence and arguments. The case was not submitted until April 23, 1921. There was thus ample time for, and every carrier was, in fact, afforded the opportunity of, introducing any and all evidence it desired. The record made is voluminous. That the evidence left in the minds of the Commission many doubts, is true. But it had brought conviction that the New England lines were entitled to relief; that the divisional arrangements of the carriers required a thorough revision to put them upon a more logical and systematic basis; that a horizontal increase of the New England lines' divisions, made before such revision, would leave some divisions too high and others too low; that the comprehensive revision proposed would necessarily take a long time; and that, meanwhile, the New England lines should be accorded 'a portion of the relief to which * * * they are entitled and which the public interest clearly requires.' The Commission further concluded that, on the evidence before it, no substantial injustice would be done to the carriers west of the Hudson by an order which increased by 15 per cent. the existing divisions of the New England lines, and reduced, by the amount required for this purpose, the divisions of the several carriers west of the Hudson, in the proportions in which they then shared the balance of each joint rate, or as otherwise might be agreed between them or determined by the Commission upon application.
A hearing may be a full one, although the evidence introduced does not enable the tribunal to dispose of the issues completely or permanently, and although the tribunal is convinced, when entering the order thereon, that, upon further investigation, some changes in it will have to be made. To grant under such circumstances immediate relief, subject to later readjustments, was no more a transfer of revenues pending a decision, than was the like action, in cases involving general increases in rates, a transfer of revenues from the pockets of the shippers to the treasury of the carriers. That the order is not obnoxious to the due process clause, because provisional, is clear. If this were not so, most temporary injunctions would violate the Constitution.
Fifth. It is contended that the order is void, because it confines itself to dealing with the main, or primary, divisions of the joint rates at the Hudson river, and fails to prescribe the subdivisions of that part of the rate which goes to the several carriers. The argument is that, if the Commission acts at all in apportioning the joint rate, its action is invalid unless it prescribes the proportion to be received by each of the connecting carriers. For this contention there is no warrant either in the language of the act, in the practice of carriers, or in reason. The duty imposed upon the Commission does not extend beyond the need for its action. If the real controversy is merely how much of the joint rate shall go to carriers east of Hudson river and how much to carriers west, there is nothing in the law which prevents the Commission from letting the parties east of the river, and likewise those west of it, apportion their respective shares among themselves. It is obviously of no interest to the Western carriers how those of New England decide to apportion their share; nor is it of interest to the Eastern carriers how those west of the Hudson divide the share apportioned to that territory. If on these matters the carriers interested can reach an agreement and no public interest is prejudiced, clearly, there is no occasion for the Commission to act.
Sixth. It is contended that the order is void, because it is unsupported by evidence. An order of the Commission fixing rates, if unsupported by evidence, is clearly invalid. Interstate Commerce Commission v. Union Pacific R. R. Co., 222 U. S. 541, 547, 32 Sup. Ct. 108, 56 L. Ed. 308. Florida East Coast Ry. Co. v. United States, 234 U. S. 167, 34 Sup. Ct. 867, 58 L. Ed. 1267. The rule must, of course, be the same in respect to an order fixing divisions. The contention that the order is unsupported by the evidence rests largely upon arguments which assume a construction of the statute which we hold to be erroneous, or upon expressions in the first report of the Commission, which, in view of the second report and order thereon, must be deemed to have been withdrawn. That the evidence was ample to support the order made, is shown in the opinion of the lower court (282 Fed. 306, 308, 309), and in the reports of the Commission. To consider the weight of the evidence, or the wisdom of the order entered, is beyond our province. Manufacturers' Railway Co. v. United States, 246 U. S. 457, 38 Sup. Ct. 383, 62 L. Ed. 831; Skinner & Eddy Corporation v. United States, 249 U. S. 557, 562, 39 Sup. Ct. 375, 63 L. Ed. 772; Seaboard Air Line Ry. Co. v. United States, 254 U. S. 57, 62, 41 Sup. Ct. 24, 65 L. Ed. 129. But the way is still open to any carrier to apply to the Commission for modification of the order, if it is believed to operate unjustly in any respect.
Except the Boston & Albany, which is leased to the New York Central, one of the trunk lines which was a respondent before the Commission, and branches of two Canadian systems, the Grand Trunk and the Canadian Pacific.
Other than the Bangor & Aroostook, which had been a complainant before the Commission, and the Boston & Albany, which had not.
Thus the order does not include traffic passing through Canada. Nor does it apply to rates on coal (which constitutes about two-fifths of the total interchanged tonnage), nor to those on certain other commodities.
Compare St. Louis Southwestern Ry. Co. v. United States, 245 U. S. 136, 139, note 2, 38 Sup. Ct. 49, 62 L. Ed. 199; Central R. R. Co. of New Jersey v. United States, 257 U. S. 247, 42 Sup. Ct. 80, 66 L. Ed. 217.
The number of carriers named as respondents in the order entered by the Commission is 617. Only 44 of these originally joined as plaintiffs in this suit. One of these, the Illinois Central, withdrew; 39 intervened later as plaintiffs. Leading trunk linesthe New York Central, the Pennsylvania, and the Baltimore & Ohioby which a large part of all traffic interchanged with the New England railroads was carried, acquiesced in the Commission's order.
Thus: To enable the carriers 'properly to meet the transportation needs of the public,' section 422, p. 491; to give due consideration to 'the transportation needs of the country, and the necessity * * * of enlarging [transportation] facilities,' section 422, p. 488; to 'best meet the emergency and serve the public interest ' section 402, p. 477; to 'best promote the service in the interest of the public and the commerce of the people,' section 402, pp. 476, 477; 'that the public interest will be promoted,' section 407, p. 482.
Among them are the establishment of the Railroad Labor and the Adjustment Boards. Title III, pp. 469-474. See Pennsylvania R. R. Co. v. United States Railroad Labor Board, decided this day. The provisions for raising capital, by new government loans, section 210, pp. 468, 469; by loans from the railroad contingent fund (the recapture provision), section 15a (10, 16), pp. 490, 491; those placing the issue of new securities under the control of the Commission, unaffected by the laws of the several states, section 439, pp. 494-496; the provision for consolidation of railways into a limited number of systems, section 407, pp. 480-482; provisions for securing adequate car service, Lambert Run Coal Co. v. Baltimore & Ohio R. R. Co., 258 U. S. 377, 42 Sup. Ct. 349, 66 L. Ed. 671; for joint use of terminals; for routing; for interchange of traffic between railroads, and between a railroad and water carrier, section 402, pp. 476-478; section 405, p. 479; sections 412, 413, p. 483.
Section 422, pp. 488, 489. To this end, also, the Commission was empowered, among other things, to permit pooling of traffic or earnings, section 407, pp. 480, 481; to authorize abandonment of unprofitable and unnecessary lines, section 402, p. 477; Texas v. Eastern Texas R. R. Co., 258 U. S. 204, 42 Sup. Ct. 281, 66 L. Ed. 566; to fix minimum, as well as maximum, rates; and thus prevent cut-throat competition and the taking away of traffic from weaker competitors, section 418, p. 485; to prevent the depletion of interstate revenues by discriminating intrastate rates, Railroad Commission of Wisconsin v. Chicago, Burlington & Quincy R. R. Co., 257 U. S. 563, 42 Sup. Ct. 232, 66 L. Ed. 371; New York v. United States, 257 U. S. 591, 42 Sup. Ct. 239, 66 L. Ed. 385; and to determine the division of joint rates.
There is evidence that the rate per ton per mile received by the New Haven from freight local to its lines was four times as high as the rate per ton per mile, under existing divisions, on freight interchanged by it with carriers west of Hudson river.
What is known as Official Classification Territory comprises the three subdivisions, New England Freight Association Territory, Trunk Line Association Territory, and Central Freight Association Territory. See map, The Five Per Cent. Case, 31 I. C. C. 350.
Estimated on the volume of traffic moving in 1919.
Citing Star Grain & Lumber Co. v. Atchison, Topeka & Santa Fe Ry. Co., 14 I. C. C. 364, 370; Manufacturers' Railway Co. v. St. Louis, Iron Mt., & Southern Ry. Co., 21 I. C. C. 304, 313; Investigation of Alleged Unreasonable Rates on Meats, 23 I. C. C. 656, 661; Class Rates from Chestnut Ridge Railway Stations, 41 I. C. C. 62; Western Pacific Co. v. Southern Pacific Co., 55 I. C. C. 71, 84. See Low Moor Iron Co. v. Chesapeake & Ohio R. R. Co., 42 I. C. C. 221.
Citing H. R. No. 456, pp. 9, 10, 66th Congress, 1st Session; Conference Report No. 650, 66th Congress, 2d Session; Mr. Esch, 59 Cong. Rec. part 4, p. 3268; Senator Robinson, 59 Cong. Rec. pt. 4, p. 3331.
Power to establish through routes and joint rates had been conferred by section 4 of the Hepburn Act, June 29, 1906, c. 3591, 34 Stat. 584, 589 (Comp. St. § 8583).
Compare Morgantown & Kingwood Divisions, 49 I. C. C. 540. The section was involved in Tap Line Cases, 234 U. S. 1, 28, 34 Sup. Ct. 741, 58 L. Ed. 1185; O'Keefe, Receiver, v. United States 240 U. S. 294, 300, 36 Sup. Ct. 313, 60 L. Ed. 651; Manufacturers' Railway Co. v. United States, 246 U. S. 457, 480, 483, 38 Sup. Ct. 383, 62 L. Ed. 831; Louisiana & Pine Bluff Railway Co. v. United States, 257 U. S. 114, 118, 42 Sup. Ct. 25, 66 L. Ed. 156.
In thus making clear that in fixing divisions as well as rates the public interest should be considered, Congress doubtless had in mind expression to the contrary in opinions of the Co mission. See Germain Co. v. New Orieans & Northeastern R. R. Co., 17 I. C. C. 22, 24; Board of Trade of Chicago v. Atlantic City R. R. Co., 20 I. C. C. 504, 508; In re Divisions of Joint Rates on Coal, 22 I. C. C. 51, 53; Morgantown & Kingwood Divisions, 49 I. C. C. 540, 550.
Compare Burnham, Hanna, Munger Co. v. Chicago, Rock Island & Pacific Ry. Co., 14 I. C. C. 299; City of Spokane v. Northern Pacific Ry. Co., 15 I. C. C. 376.
Plaintiffs argue that there is a difference, because all interstate rates are required to be filed with the Commission and published, and hence appear specifically in the record; whereas divisions are not required to be filed or published. The difference is without legal significance. Papers on the Commission files are not a part of the record in a case, unless they are introduced as evidence It is the nature of the inquiry, not the accident whether papers are on file or published, which determines whether facts can be proved by evidence which is typical. The Commission could, of course, require carriers to introduce all their division sheets. To a proceeding of this character the rule acted on in Florida East Coast Line v. United States, 234 U. S. 167, 34 Sup. Ct. 867, 58 L. Ed. 1267, is not applicable. Compare United States v. L. & N. R. R. Co., 235 U. S. 314, 35 Sup. Ct. 113, 59 L. Ed. 245.
Since Transportation Act 1920, the Commission has on several occasions modified the divisions of a carrier without considering each individual joint rate. Pittsburgh & West Virginia Ry. Co. v. Pittsburgh & Lake Erie R. R. Co., 61 I. C. C. 272; East Jersey R. R. & Terminal Co. v. Central R. R. Co. of New Jersey, 63 I. C. C. 80; Division of Joint Rates and Fares of Missouri & North Arkansas R. R. Co., 68 I. C. C. 47.
The junction points on which are based the divisions between the New England lines and the lines operating west of the Hudson River were fully set forth in the report of the Commission. To fix divisions on the percentage basis with a basic dividing line was what had been commonly done in the agreements of carriers through their freight associations. In leaving to the respondent carriers, in the first instance, the apportionment among themselves of that part of the joint rate receivable by the carriers operating west of the Hudson River the Commission followed a long established practice. Brownsville Texas Class and Commodity Rates, 30 I. C. C. 479, 484; Pacific Fruit Exchange v. Southern Pacific Co., 31 I. C. C. 159, 161, 162, 163; Grain Rates from Milwaukee, 33 I. C. C. 417, 420, 421; Sloss-Sheffield Steel & Iron Co. v. Louisville & Nashville R. R. Co., 35 I. C. C. 460, 465, 466; St. Louis, MissouriIllinois Passenger Fares, 41 I. C. C. 584, 598, 599. And the practice had at least the tacit approval of this Court. Compare Intermountain Rate Case, 234 U. S. 476, 485, 486, 494; O'Keefe, Receiver, v. United States, 240 U. S. 294; Manufacturers' Ry. Co. v. United States, 246 U. S. 457.