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The Green Bag

would not examine the facts further than to determine whether there was substan tial evidence to sustain the order. In this case three appeals were brought by the Interstate Commerce Commission from a decree of the Circuit Court for the district of Minnesota, enjoining a reduction of lumber rates named in ta riffs filed by the aforesaid railroads for lumber shipped from the coast to St. Paul, Omaha and Chicago. The rail roads contended that the order was be yond the power of the Commission be cause entered without any evidence or finding that the rates fixed by the car riers were unjust or unreasonable. Mr. JusticeLamar, delivering the opin ion of the Court, said: "The findings of the Commission are made by law prima facie true, and this court has ascribed to them the strength due to the judgments of a tribunal ap pointed by law and informed by experi ence: III. Cent. v. I. C. C., 206 U. S. 441. Its conclusion, of course, is subject to review, but when supported by evidence is accepted as final; not that its deci sion, involving as it does so many and such vast public interests, can be sup ported by a mere scintilla of proof — but the courts will not examine the facts further than to determine whether there was substantial evidence to sustain the order." Trial by Jury. Separate Prelimin ary Trial of One or More Issues — Sub stance of Right Must Alone be Pre served. N. Y. The appellant in Smith v. Western Pacific Ry. Co. had sued to recover a balance claimed to be due on a contract for services. The respondent had set up a general denial, and had set up among other affirmative defenses the Statute of Limitations. The Supreme Court of New York ordered a separate

and preliminary trial of the issues aris ing under this defense, and the Appellate Division affirmed the order. The appel lant contended that his constitutional right of trial by jury was impaired by section 973 of the Code of Civil Proce dure. The Court of Appeals (Hiscock, J.), in a decision rendered Dec. 19, repudiated this view, saying : — "It is well settled that the object of such a provision is to preserve the sub stance of the right of trial by jury rather than to prescribe the details of the meth ods by which it shall be exercised and enjoyed. Thus in Walker v. Southern Pacific R. R. (165 U. S. 593, 396), Judge Brewer, considering whether a statute of New Mexico violated the provisions of the United States Constitution on this subject, said: 'The question is whether this act of the territorial legis lature in substance impairs the right of trial by jury. The Seventh Amendment, indeed, does not attempt to regulate matters of pleading or practice, or to determine in what way issues shall be framed by which questions of fact are to be submitted to a jury. Its aim is not to preserve mere matters of form and procedure, but substance of right. This requires that questions of fact in common law actions shall be settled by a jury, and that the court shall not assume directly or indirectly to take from the jury or to itself such preroga tive. So long as this substance of right is preserved, the procedure by which this result shall be reached is wholly within the discretion of the legislature, and the courts may not set aside any legislative provision in this respect be cause the form of action — the mere manner in which questions are sub mitted — is different from that which obtained at the common law.'" N. Y. L. Jour., Dec. 28.