Intrastate Class Rates in New Jersey 357,365, it found that the "intrastate class rates between points in New Jersey commonly grouped with New York City, on the one hand, and Camden and points as to which Camden is intermediate over short-line routes, on the other hand, which are lower than the class rates in effect between Philadelphia and said points in New Jersey grouped with New York City would cause undue prejudice to Philadelphia and shippers therein and undue preference of Camden and shippers therein."
A further answer to this contention is found in the following facts: The Commission utilizes a "proposed report plan" under which, after the taking of the evidence and after the filing of briefs, but before the oral argument, the examiner issues his proposed report, finding facts as established by the evidence, and making his recommendations as to the findings and conclusion to be adopted by the Commission. (Rule XIV, Rules of Practice for the Commission, paragraphs (d) 3, 4, 5, and 6). All parties to the proceeding are entitled to file their exceptions to the proposed report, and as a matter of practice the Commission accepts as sound and accurate, and as supported by the evidence, all findings of fact in the proposed report to which no exceptions are made. In the instant case plaintiff filed exceptions but made no objection as to the sufficiency of the findings. Under the Commission's Rules of Practice (Rule XV) it is permissible for any party, after decision, to apply for a rehearing for the taking of additional testimony, for reargument, or for reconsideration. Plaintiff did not apply to the Commission for rehearing in this case. By petition for such rehearing the way was open to plaintiff to urge upon the Commission the argument which it now presents for the first time to the court as to alleged insufficiency of the findings. It should have exhausted its remedies before the Commission before appealing in this respect to the court.
Plaintiff also contends that the evidence was insufficient to support the order of the Commission. Its argument is this: First, only two witnesses, Roeder and Davison, undertook to establish the undue preference and undue prejudice as between localities which was found in the Commission's report. Their testimony failed to give necessary details, and was, therefore, incompetent and immaterial, and fell short of the accepted standard.Secondly, the requirement of the order "that the intrastate class rates to and from Northern New Jersey should be raised to the level of interstate class rates for greater service, i.e., the service to and from New York City is contrary to the evidence." There was ample evidence to support the finding of prejudice. The testimony of Roeder and Davison is supplemented by the entire record of evidence introduced in the proceeding before the New Jersey Board in a prior proceeding. The objection that the testimony does not disclose competition between specific articles or commodities, or reveal the names of persons preferred or prejudiced is without merit. An attempt to deal with in dividual commodities and shippers in order to prove discrimination in class rates as between localities would be virtually impossible, because thousands of shippers and commodities are involved. Individual shippers were not named because such a disclosure might tend to disrupt friendly commercial relations between Philadelphia and Camden shippers.
Much of the argument in plaintiff's brief invites the court to weigh the evidence, determine that the Commission was wrong, and substitute its judgment for that of the Commission upon the administrative question determined. But it is settled that the court will not do this.In Florida et al. v. United States et al., 292 U.S. 1, 12, 54 S. Ct. 603, 608, 78 L. Ed. 1077, Chief Justice Hughes stated: "The question of the weight of the evidence was for the Commission and not for the court. The authority conferred upon the Commission by section 13(4) of the Interstate Commerce Act, with respect to intrastate rates, is not different in its quality or effect from that given to the Commission to prevent other sorts of unjust discrimination against interstate commerce. That authority rests upon the constitutional power of the Congress, extending to interstate carriers as instruments of interstate commerce, to require that these agencies shall not be used in such manner as to cripple, retard, or destroy that commerce, and to provide for the execution of that power through a subordinate body. Shreveport Case [Houston, E. & W.T.R. Co. v. United States], 234 U.S. 342, 351, 354, 355, 34 S. Ct. 833, 58 L. Ed. 1341; Railroad Commission of Wisconsin v. Chicago, B. & Q.R. Co., supra [257 U.S. 563, 42 S. Ct. 232, 66 L. Ed. 371, 22 A.L.R. 1086]. The purpose for which the Commission was created was to bring into existence a body which, from its special character, would be best fitted to determine, among other things, whether upon the facts in a given case there is an unjust discrimination against interstate commerce. United States v. Louisville & Nashville R. Co., 235 U.S. 314, 320, 35 S. Ct. 113, 59 L. Ed. 245. That purpose unquestionably extended to the prohibited discrimination produced by intrastate rates. In relation to such a discrimination, as in other matters, when the Commission exercises its authority upon due hearing, as prescribed, and without error in the application of rules of law, its findings of fact supported by substantial evidence are not subject to review. It is not the province of the courts to substitute their judgment for that of the Commission. Interstate Commerce Comm. v. Louisville & Nashville R. Co., 227 U.S. 88, 100, 33 S. Ct. 185, 57 L. Ed. 431; Western Paper Makers' Chemical Co. v. United States, 271 U.S. 268, 271, 46 S. Ct. 500, 70 L. Ed. 941; Virginian Railway Co. v. United States, 272 U.S. 658, 663, 47 S. Ct. 222, 71 L. Ed. 463; Assigned Car Cases, 274 U.S. 564, 580, 47 S. Ct. 727, 71 L. Ed. 1204; Merchants' Warehouse Co. v. United States, 283 U.S. 501, 508, 51 S. Ct. 505, 75 L. Ed. 1227; Crowell v. Benson, 285 U.S. 22, 50, 51, 52 S. Ct. 285, 76 L. Ed. 598."
Therefore, the petition of the plaintiff is denied and will be dismissed.