Harlan F. Stone

“ While at the moment appellants are content with inaction, and it is appellees who are demanding action-the payment to them of rates whose lawfulness is challenged and not yet determined-the actual posture of the case is such that the court is under a self-imposed duty to act by virtue of having taken the fund into its possession, and in acting to dispose of the fund it must conform to controlling legal principles. ”

“ Assuming, as appellees contend, that after the Secretary's order of June, 1933, was set aside he could, in the reopened proceeding, neither promulgate a rate order as of that date nor make an order for the payment of money, he was still not without authority in the premises under the statute and the mandate of this Court. He was free to make an order fixing rates for the future, and for that purpose or any other within the purview of the Act he is now free to determine a reasonable rate for the period antedating any order he may now make. ”

“ The statute, as declared by § 308 (b) , saves to the court authority to give any remedy which in the present circumstances it might otherwise afford.
This Court went much further in Atlantic Coast Line R. Co. v. Florida, supra, in denying, on equitable grounds, restitution to shippers of the excess of an intrastate rate, prescribed by order of the Interstate Commerce Commission to avoid discrimination against interstate commerce, over that prescribed by the state commission, where the order of the former was later set aside by this Court for want of proper findings by the Commission. ”

“ Section 309 (a) specifically provides: 'If * * * there appears to be any reasonable ground for investigating the complaint, it shall be the duty of the Secretary to investigate the matters complained of in such manner and by such means as he deems proper'. It seems equally plain that under § 309 (c) the Secretary, in the exercise of his discretion, may conduct such an investigation on his own motion. ”

“ In that decree the district court retained jurisdiction and decreed that 'such other proceedings be had herein in conformity to the opinion of said Supreme Court with reference to the distribution or restitution of funds deposited by plaintiffs in the Registry of this Court with the Clerk thereof pursuant to the provisions of the temporary restraining order entered on the 22nd day of July 1933 as to law and justice may appertain'.↑ See Y.B. 22 Ed. IV Mich. pl. 21 ”