WARD, Circuit Judge.
This is a petition filed by common carriers wholly by railroad, or partly By water, under arrangements for a continuous carriage with common carriers by water, for a decree setting aside an order of the Interstate Commerce Commission, dated March 14, 1919, requiring them to use two certain bills of lading, one for domestic and. the other for export transportation, prescribed by the Commission.
The petitioners move for an injunction pendente lite. The United States and the Interstate Commerce Commission move to dismiss the petition.
The only evidence before the court is the petition, the answer of the Interstate Commerce Commission, and the report and order of the Commission. The verified petition, regarded as an affidavit, and the answer of the Commission, sufficiently raise the only question we shall consider, which is one of law.
[1, 2] Congress has unquestionably the power to declare what terms common carriers, subject to Interstate Commerce Act Feb. 4, 1887, c. 104, 24 Stat. 379, and its amendments (Comp. St. § 8563 et seq.), may or may not insert in their bills of lading, and it has done so from time to time. For the purpose of this case we shall assume that Congress can delegate this legislative power to the Interstate Commerce Commission, but we shall expect to find such delegation in clear and unmistakable language. Examination of the statutes does not convince us that Congress had any intention to confer upon the Commission the right to prescribe the terms of the carriers’ bills of lading.
Section 1, as amended by Act June 18, 1910, c. 309, ,§ 7, 36 Stat. 539 (Comp. St. § 8563), paragraphed for greater clearness, requires all common carriers, subject to the act, to establish, observe, and enforce :
(1) “Just and reasonable classifications of property for transportation, with reference to which rates, tariffs, regulations, and practices are or may be made or prescribed.”
(2) “Just and reasonable regulations and practices affecting classifications, rates, or tariffs, the issuance, form, and substance of tickets, receipts, and bills of lading * * * and all other matters relating to or connected with the [715]*715receiving, handling, transportation, storing, and delivery oí property subject to the provisions of this act. * * * ”
“Every such unjust and unreasonable classification, regulation, and practice with reference to commerce between the states and with foreign countries is prohibited and declared to be unlawful.”
It may be noted that the foregoing provisions apply to carriers only.
Section 15 (Comp. St. § 8583) prescribes the powers of the Commission in the premises, and not one word about contracts or the substance of bills of lading is used. The reference is only to rates, classifications, regulations, or practices in connection with the receiving, handling, transporting, storing and delivery of property. The Commission is authorized—
“to determine and prescribe what will be the just and reasonable individual or joint rate or rates, charge or charges, to be thereafter observed in such a case as the maximum to be charged, and what individual or joint classification, regulation, or practice is just, fair, and reasonable, to be thereafter followed, and to make an order that the carrier or carriers shall cease and desist from such violation to the extent to which the Commission finds the same to exist, and shall not thereafter publish, demand, or collect any rate or charge for such transportation or transmission in excess of the maximum rate or charge so prescribed, and shall adopt the classification and shall conform to and observe the regulation or practice so prescribed.”
All this refers to rates, classifications, regulations, and practices. That the Commission has power under section 12 of the act (Comp. St. § 8576), 'to investigate as to the fairness of the carriers’ bills of lading we have no doubt, but we discover nowhere any authority conferred upon it to draw the carriers’ bills of lading either in whole or in part. If they are in any respect unjust or unreasonable or unlawful, the courts are open to the parties injured; if they contain any limitation of liability for loss or damage which Congress has declared to be void, the courts will say so. Missouri, Kansas & Texas Ry. v. Harriman, 227 U. S. 668, 33 Sup. Ct. 397, 57 L. Ed. 690.
[3, 4] The question is one of power to make the order, and not one of -its expediency. Therefore we shall not inquire whether the alterations the Commission has prescribed in the bills of lading are reasonable or not, because we think it has no power to make them. In any event, there was no power to prescribe an inland bill of lading in form or substance depriving the carriers of the benefits of the statutes limiting the liability of vessel owners and of Harter Act Feb. 13, 1893, c. 105, 27 Stat. 445 (Comp. St. ,§§ 8029-8035). These statutes still survive, unless repealed by implication, and this result we are of opinion was neither intended nor accomplished.
Indeed, section 15 prescribes:
“* * * Nor shall the Commission have the right to establish any route, classification, rate, fare, or charge when the transportation is wholly by water, and any transportation by water affected by this act shall be subject to the laws and regulations applicable to transportation by water.”
- The distinction between the power to make an order and the expediency of an order which the Commission has the power to make is stated in Interstate Commerce Commission v. Illinois Central Ry. Co., 215 U. S. at page 470, 30 Sup. Ct. at page 160, 54 L. Ed. 280, referred [716]*716to with approval in Interstate Commerce Commission v. Baltimore & Ohio R. R. Co., 225 U. S. at page 340, 32 Sup. Ct. 742, 56 L. Ed. 1107, Ann. Cas. 1914A, 504:
“Beyond controversy, in determining whether an order of the Commission shall be suspended or set aside, we must consider (a) all relevant questions of constitutional power or right; (b) all pertinent questions as to whether the administrative order is within the scope of the delegated authority under which it purports to have been made; and (c) a proposition which we state independently, although in its essence it may be contained in the previous one, viz. whether, even although the.order be in form within the delegated power, nevertheless it must be treated as not embraced therein, because the exertion of authority which is questioned has been manifested in such an unreasonable manner as to cause it, in truth, to be within the elementary rule that the substance, and not the shadow, determines the validity of the exercise of the power. Postal Telegraph Cable Co. v. Adams, 155 U. S. 688, 698 [15 Sup. Ct 268, 39 L. Ed. 311]. Plain as it is that the powers just stated are of the essence of judicial authority, and which, therefore, may not be curtailed, and whose discharge may not be by us in a proper case avoided, it is equally plain that such perennial powers lend no support whatever to the proposition that we may, under the guise of exerting judicial power, usurp merely administrative functions by setting aside a lawful administrative order of what our conception is as to whether the administrative power has been wisely exercised.
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WARD, Circuit Judge.
This is a petition filed by common carriers wholly by railroad, or partly By water, under arrangements for a continuous carriage with common carriers by water, for a decree setting aside an order of the Interstate Commerce Commission, dated March 14, 1919, requiring them to use two certain bills of lading, one for domestic and. the other for export transportation, prescribed by the Commission.
The petitioners move for an injunction pendente lite. The United States and the Interstate Commerce Commission move to dismiss the petition.
The only evidence before the court is the petition, the answer of the Interstate Commerce Commission, and the report and order of the Commission. The verified petition, regarded as an affidavit, and the answer of the Commission, sufficiently raise the only question we shall consider, which is one of law.
[1, 2] Congress has unquestionably the power to declare what terms common carriers, subject to Interstate Commerce Act Feb. 4, 1887, c. 104, 24 Stat. 379, and its amendments (Comp. St. § 8563 et seq.), may or may not insert in their bills of lading, and it has done so from time to time. For the purpose of this case we shall assume that Congress can delegate this legislative power to the Interstate Commerce Commission, but we shall expect to find such delegation in clear and unmistakable language. Examination of the statutes does not convince us that Congress had any intention to confer upon the Commission the right to prescribe the terms of the carriers’ bills of lading.
Section 1, as amended by Act June 18, 1910, c. 309, ,§ 7, 36 Stat. 539 (Comp. St. § 8563), paragraphed for greater clearness, requires all common carriers, subject to the act, to establish, observe, and enforce :
(1) “Just and reasonable classifications of property for transportation, with reference to which rates, tariffs, regulations, and practices are or may be made or prescribed.”
(2) “Just and reasonable regulations and practices affecting classifications, rates, or tariffs, the issuance, form, and substance of tickets, receipts, and bills of lading * * * and all other matters relating to or connected with the [715]*715receiving, handling, transportation, storing, and delivery oí property subject to the provisions of this act. * * * ”
“Every such unjust and unreasonable classification, regulation, and practice with reference to commerce between the states and with foreign countries is prohibited and declared to be unlawful.”
It may be noted that the foregoing provisions apply to carriers only.
Section 15 (Comp. St. § 8583) prescribes the powers of the Commission in the premises, and not one word about contracts or the substance of bills of lading is used. The reference is only to rates, classifications, regulations, or practices in connection with the receiving, handling, transporting, storing and delivery of property. The Commission is authorized—
“to determine and prescribe what will be the just and reasonable individual or joint rate or rates, charge or charges, to be thereafter observed in such a case as the maximum to be charged, and what individual or joint classification, regulation, or practice is just, fair, and reasonable, to be thereafter followed, and to make an order that the carrier or carriers shall cease and desist from such violation to the extent to which the Commission finds the same to exist, and shall not thereafter publish, demand, or collect any rate or charge for such transportation or transmission in excess of the maximum rate or charge so prescribed, and shall adopt the classification and shall conform to and observe the regulation or practice so prescribed.”
All this refers to rates, classifications, regulations, and practices. That the Commission has power under section 12 of the act (Comp. St. § 8576), 'to investigate as to the fairness of the carriers’ bills of lading we have no doubt, but we discover nowhere any authority conferred upon it to draw the carriers’ bills of lading either in whole or in part. If they are in any respect unjust or unreasonable or unlawful, the courts are open to the parties injured; if they contain any limitation of liability for loss or damage which Congress has declared to be void, the courts will say so. Missouri, Kansas & Texas Ry. v. Harriman, 227 U. S. 668, 33 Sup. Ct. 397, 57 L. Ed. 690.
[3, 4] The question is one of power to make the order, and not one of -its expediency. Therefore we shall not inquire whether the alterations the Commission has prescribed in the bills of lading are reasonable or not, because we think it has no power to make them. In any event, there was no power to prescribe an inland bill of lading in form or substance depriving the carriers of the benefits of the statutes limiting the liability of vessel owners and of Harter Act Feb. 13, 1893, c. 105, 27 Stat. 445 (Comp. St. ,§§ 8029-8035). These statutes still survive, unless repealed by implication, and this result we are of opinion was neither intended nor accomplished.
Indeed, section 15 prescribes:
“* * * Nor shall the Commission have the right to establish any route, classification, rate, fare, or charge when the transportation is wholly by water, and any transportation by water affected by this act shall be subject to the laws and regulations applicable to transportation by water.”
- The distinction between the power to make an order and the expediency of an order which the Commission has the power to make is stated in Interstate Commerce Commission v. Illinois Central Ry. Co., 215 U. S. at page 470, 30 Sup. Ct. at page 160, 54 L. Ed. 280, referred [716]*716to with approval in Interstate Commerce Commission v. Baltimore & Ohio R. R. Co., 225 U. S. at page 340, 32 Sup. Ct. 742, 56 L. Ed. 1107, Ann. Cas. 1914A, 504:
“Beyond controversy, in determining whether an order of the Commission shall be suspended or set aside, we must consider (a) all relevant questions of constitutional power or right; (b) all pertinent questions as to whether the administrative order is within the scope of the delegated authority under which it purports to have been made; and (c) a proposition which we state independently, although in its essence it may be contained in the previous one, viz. whether, even although the.order be in form within the delegated power, nevertheless it must be treated as not embraced therein, because the exertion of authority which is questioned has been manifested in such an unreasonable manner as to cause it, in truth, to be within the elementary rule that the substance, and not the shadow, determines the validity of the exercise of the power. Postal Telegraph Cable Co. v. Adams, 155 U. S. 688, 698 [15 Sup. Ct 268, 39 L. Ed. 311]. Plain as it is that the powers just stated are of the essence of judicial authority, and which, therefore, may not be curtailed, and whose discharge may not be by us in a proper case avoided, it is equally plain that such perennial powers lend no support whatever to the proposition that we may, under the guise of exerting judicial power, usurp merely administrative functions by setting aside a lawful administrative order of what our conception is as to whether the administrative power has been wisely exercised. Power to make the order, and not the mere expediency or wisdom of having made it, is the question.”
[5-7] All the petitioners are at present under federal'control, except five of the water carriers. Of these the Clyde Steamship Company and the Mallory Steamship Company have their principal operating offices in the city of New York, and so has the Old Dominion Steamship Company, which is under federal control. Of the railroads the New York Central has its principal office in this city. Therefore the jurisdiction of the court over the person conforms to the requirements of Act Oct. 22, 1913, c. 32, 38 Stat. 219. It is said that the petitioners, except the five water carriers above mentioned, are unaffected by the order, because now in the actual control of the Director General of Railways. This control is expected to cease within the current year, and they will be subject to the order the moment their properties are returned to them, whether the Director General complies with the order or not. If it was right to subject them presently to the order, it is right that they should be allowed presently to dispute it, and we think there can be no doubt that the water carriers, who can only escape from the order by withdrawing from joint arrangements with the land carriers and making entirely new dispositions, and all the carriers who will be bound by it when their properties are returned to them, will be subjected to damage irreparable within the meaning of the law. It would be impossible for the carriers in many cases to collect what they have paid out or lost, if the Supreme Court were to hold that the order was not within the power of the Commission.
The motion to dismiss the petition is denied, and the motion for a preliminary injunction is granted.