tions of those statutes against unreasonable rates and unjust discriminations, which objection is based upon the ground that such reports contain other statements than findings of fact, if not obviated by excluding the supposed objectionable portions of the reports from what was read by counsel to the jury, was waived where the court's attention was not directed to the subject when the jury was charged. Interstate Commerce Commission tiary facts. Reports Ultimate or eviden The ultimate facts rather than the evidential facts are to be stated by the Interstate Commerce Commission in the report which that Commission, under the act of February 4, 1887 (24 Stat. at L. 379, chap. 104, Comp. Stat. 1913, § 8563), § 14, as amended by the act of June 29, 1906 (34 Stat. at L. 584, chap. 3591, Comp. Stat. 1913, § 8563), must make upon investigating a complaint, which report under that statute "shall state the conclusions of the Commission, together with its decision, order, or requirement in the premises," and if damages be awarded "shall include the findings of fact on which the award is made." Damages · Reparation to shipper· Rebating - Unreasonable rates. The damages awarded to a shipper by the Interstate Commerce Commission as reparation for unjust discrimination and unreasonable rates, which, under the act of February 4, 1887 (24 Stat. at L. 379, chap. 104, Comp. Stat. 1913, § 8563), § 8, shall be the "full amount of damages sustained," may be measured respectively by the rebate to a favored competitor, and by the charge in excess of what would have been a reasonable rate, if the evidence shows that such amounts represent the claimant's actual pecuniary loss. Interstate Commerce Commission — Review of findings. Findings of the Interstate Commerce Commission on a claim by a shipper for reparation because of rebating and unreasonable rates, which plainly import that the amounts awarded represent the claimant's actual pecuniary loss, must be presumed, there being no showing to the contrary, to have been justified by the evidence, where there is a recital in the Commission's report that the findings are based upon the evidence adduced. Constitutional law · Due process of law-Jury trial ating presumption. - ·Statute cre The rebuttable presumption established by the provision of the act of February 4, 1887 (24 Stat. at L. 379, chap. 104, Comp. Stat. 1913, § 8563), § 16, as amended by the act of June 29, 1906 (34 Stat. at L. 584, chap. 3591, Comp. Stat. 1913, § 8563), that, in actions under that section to recover from a carrier the damages alleged to have been sustained by a shipper and awarded by the Interstate Commerce Commission by reason of the carrier's violation of the provisions of those statutes, "the findings and order of the Commission shall be prima facie evidence of the facts therein stated," does not infringe upon the right of trial by jury, nor deny due process of law. Review of facts Allowance of attorney's fee. an attorney's fee to a shipper in an action under the act of February 4, 1887 (24 Stat. at L. 379, chap. 104, Comp. Stat. 1913, § 8563), § 16, as amended by the act of June 29, 1906 (34 Stat. at L. 584, chap. 3591, Comp. Stat. 1913, § 8563), to recover from the carrier the damages alleged to have been sustained by the shipper and awarded by the Interstate Commerce Commission by reason of the carrier's violations of those statutes, is excessive as a matter of fact, where such allowance was based upon an exhibition of a transcript of the proceedings before the Commission, and upon a statement made in open court in the presence of counsel for the carrier of the services rendered before the Commission and in the action, and such transcript and statement have not been made a part of the record, and it does not appear that the carrier offered any evidence tending to show what would be a reasonable allowance, or that it made any objection or exception other than an exception to the allowance of any fee. The services for which an attorney's fee is to be taxed and collected under the act of February 4, 1887 (24 Stat. at L. 379, chap. 104, Comp. Stat. 1913, § 8563), §§ 8, 16, as amended by the act of June 29, 1906 (34 Stat. at L. 584, chap. 3591, Comp. Stat. 1913, § 8563), in case of plaintiff's final success in an action to recover from a carrier the damages alleged to have been sustained by a shipper and awarded by the Interstate Commerce Commission by reason of the carrier's violation of the provisions of those statutes must be deemed to be those incident to the action in which the recovery is had, and not to those before the Commission, in view of the fact that the Commission is not to allow a fee, but only to find the amount of the damages and fix a time for payment, and that if the carrier pays the award within the time named no right to an attorney's fee arises. Constitutional law. ·Due process of law - Allowance of attorney's fee to successful plaintiff. There is no merit in the objection that the provision of the act of February 4, 1887 (24 Stat. at L. 379, chap. 104, Comp. Stat. 1913, § 8563), §§ 8, 16, as amended by the act of June 29, 1906 (34 Stat. at L. 584, chap. 3591, Comp. Stat. 1913, § 8563), for the allowance of a reasonable attorney's fee in case of plaintiff's final success in an action to recover from a carrier the damages alleged to have been sustained by a shipper and awarded by the Interstate Commerce Commission by reason of the carrier's violation of the provisions of those statutes, is invalid as being purely arbitrary, and as imposing a penalty for merely failing to pay a debt. [Argued October 13 and 14, 1914. Decided February 23, 1915.] ON writ of Certiorari to the United States Circuit Court of Appeals for the Third Circuit to review a judgment which reversed a judgment of the District Court for the Eastern District of Pennsylvania in favor of plaintiff in an action to recover from a carrier the damages alleged to have been sustained by a shipper and awarded by the Interstate Commerce Commission by reason of the carrier's overcharges and unjust discrimination. Judgment of Circuit Court of Appeals reversed; judgment of District Court modified by eliminating an allowance of attorreys' fees for services before the Commission, and, as modified, affirmed. See same case below 211 Fed. 785. The facts are stated in the opinion. Appearances: Messrs. John A. Garver and William A. Glasgow, Jr., for petitioner; Messrs. John G. Johnson, Frank H. Platt, George W. Field, and Edgar H. Boles for respondent; Messrs. Joseph W. Folk and Charles W. Needham for the Interstate Commerce Commission. Mr. Justice Van Devanter delivered the opinion of the court: The This was an action under § 16 of the act to regulate commerce1 to recover from the Lehigh Valley Railroad Company damages alleged to have been sustained by a shipper and awarded by the Interstate Commerce Commission by reason of the company's violation of the prohibition in §§ 1 and 2 of that act against unreasonable rates and unjust discrimination. plaintiff prevailed in the district court, but the circuit court of appeals reversed the judgment (211 Fed. 785), and a writ of certiorari granted under § 262 of the Judicial Code [36 Stat. at L. 1162, chap. 231, Comp. Stat. 1913, § 1239] brings the case here (234 U. S. 749, 58 L. ed. 1576, 34 Sup. Ct. Rep. 674). The plaintiff was the surviving member of Meeker & Company, a copartnership, and sued in that capacity. This firm was engaged in the anthracite coal trade in New York city, and was accustomed to purchase its coal at collieries in Pennsylvania, 1 See act February 4, 1887, 24 Stat. at L. 379, chap. 104, Comp. Stat. 1913, § 8563, and amendments of March 2, 1889, 25 Stat. at L. 855, chap. 382, Comp. Stat. 1913, § 8569; February 10, 1891, 26 Stat. at L. 743, chap. 128, Comp. Stat. 1913, § 8576; February 8, 1895, 28 Stat. at L. 643, chap. 61, Comp. Stat. 1913, § 8595; June 29, 1906, 34 Stat. at L. 584, chap. 3591, Comp. Stat. 1913, § 8563; and June 30, 1906, 34 Stat. at L. 838, Joint Resolution No. 47. and to ship it over the defendant's railroad to tidewater at Perth Amboy, New Jersey, and thence by vessel to New York. Two distinct claims were involved. The first covered shipments from November 1, 1900, to August 1, 1901, and was grounded upon a charge that the railroad company had unjustly and injuriously discriminated against Meeker & Company by giving (on August 1, 1901) to another and extensive shipper of anthracite between the same points an indirect but substantial rebate upon all shipments during the same period, and that by reason of this rebate the other shipper had obtained a contemporaneous service in all respects like that rendered for Meeker & Company at a less rate than was exacted from the latter. The second covered shipments from August 1, 1901, to July 17, 1907, and was based upon the charge that the established rate paid by Meeker & Company during that period was excessive and unreasonable. On July 17, 1907, a complaint embodying both claims was presented to the Interstate Commerce Commission under §§ 9 and 13 of the act, and after a full hearing in which the railroad company was an active participant, the Commission made a written report (21 Inters. Com. Rep. 129) finding that the charge of unjust discrimination was sustained by the evidence, condemning as excessive and unreasonable the rate which was in effect from August 1, 1901, to the date of the report, naming what was deemed a maximum reasonable rate, holding that the claimant was entitled to an award of reparation upon both claims, and directing that further proceedings be had to determine the amount to be awarded. Under § 15 of the act an order was then made requiring the railroad company, within a time named, to cease giving effect to the prior rate found unreasonable, and to establish a new rate not exceeding that found reasonable. Thereafter a further hearing was had at which additional evidence bearing upon the question of reparation was presented, and, on May 7, 1912, the Commission made a supplemental report, saying (23 Inters. Com. Rep. 480): "In our original report we found that the rates charged complainant for the transportation of anthracite coal from the Wyoming coal region in Pennsylvania to Perth Amboy, New Jersey, during the period from November 1, 1900, to August 1, 1901, were unjustly discriminatory in violation of 2 of the act, to the extent that they exceeded the rates contemporaneously charged the Lehigh Valley Coal Company under the contract then in effect between that company and defendant; and we further found that the rates in effect from August 1, 1901, to July 17, 1907, were unreasonable to the extent that they exceeded rates of $1.40 per gross ton on prepared sizes, $1.30 on pea, and $1.15 on buckwheat. "On basis of our conclusions in the former report, and upon consideration of the evidence adduced at the hearing upon the question of reparation, we now find that during the period from November 1, 1900, to August 1, 1901, complainant shipped from the Wyoming coal region of Pennsylvania to Perth Amboy, New Jersey, 55,257.75 tons of coal of prepared sizes, 16,689.76 tons of pea coal, 11,448.93 tons of buckwheat coal, and 4,926.77 tons of rice coal, and paid charges thereon, amounting to $129,989.18, at the rates found to have been unjustly discriminatory; that complainant has been damaged to the extent of the difference between the amount which he did pay and $118,979.85, the amount which he would have paid had he been given the benefit of the rates applied by defendant to similar shipments of the Lehigh Valley Coal Company; and that he is, therefore, entitled to an award of reparation in the sum of $11,009.33; with interest thereon from August 1, 1901. We find further that from August 1, 1901, to July 17, 1907, complainant shipped from the Wyoming coal region in Pennsylvania to Perth Amboy, New Jersey, 246,870.15 tons of coal of prepared sizes, 106,051.09 tons of pea coal, and 87,250 tons of buckwheat coal, and paid charges thereon amounting to $685,375.27, at the rates found to have been unreasonable; that complainant has been damaged to the extent of the difference between the amount which he did pay $626,945.62, the amount which he would have paid at the rates found reasonable, less $193.20 deducted by stipulation of all parties on account of certain claims already paid; and that he is, therefore, entitled to an additional award of reparation in the sum of $58,236.45, with interest, amounting to $27,750.64, on the individual charges comprising said sum from the dates of payment thereof to September 1, 1911, |