(h) [Depositions in valuation proceedings.] In valuation cases the commission upon application of any party showing good cause therefor may permit the taking of depositions upon written interrogatories and cross-interrogatories before such persons as it may designate and under such conditions as it may prescribe. All expenses of taking such depositions shall be borne by the applicant. Cross Reference See sec. 19a (1), title 49, note 307, Procedure upon hearing of protest against tentative valuation. XII. WITNESSES AND SUBPOENAS (a) [Subpoenas, who may issue.] Subpoenas requiring the attendance of witnesses from any place in the United States at any designated place of hearing may be issued by any member of the commission. Cross Reference See sec. 12 (1), title 49, notes 45-48, Power to require testimony. (b) [Subpoenas duces tecum, written application.] Subpoenas for the production of books, papers, or documents, unless directed by the commission upon its own motion, will issue only upon application in writing. Applications to compel witnesses who are not parties to the proceedings, or agents of such parties, to produce documentary evidence must be verified and must specify, as nearly as may be, the books, papers, or documents desired and the facts to be proven by them. Applications to compel a party to the proceedings to produce books, papers, or documents should set forth the books, papers, or documents sought, with a showing that they will be of service in the determination of the proceeding. Cross Reference See sec. 12 (1), title 49, notes 54-62, Production of books, papers, etc. (c) [Fees of witnesses.] Witnesses who are summoned are entitled to the same fees as are paid for like service in the courts of the United States, such fees to be paid by the party at whose instance the testimony is taken. Cross Reference See Rule XI (g), Depositions, fees of officers and witnesses. (d) [Return of subpoena.] If service of subpoena is made by a United States marshal or his deputy such service shall be evidenced by his return thereon. If made by any other person, such person shall make affidavit thereof, describing the manner in which service is made, and return such affidavit on or with the original subpoena in accordance with the form thereon. In case of failure to make service the reasons for the failure shall be stated on the original subpœna. In making service the original subpoena shall be exhibited to the person served, shall be read to him if he is unable to read, and a copy thereof shall be left with him. The original subpoena, bearing or accompanied by the required return, affidavit, or statement, shall be returned forthwith to the secretary of the commission, or, if so directed on the subpoena, to the presiding commissioner or examiner before whom the person named in the subpoena is required to appear. XIII. DOCUMENTARY EVIDENCE (a) [Relevant matter in same document with irrelevant.] Where relevant and material matter offered in evidence by any party is embraced in a book, paper, or document containing other matter, not material or relevant, the party must plainly designate the matter so offered. If the other matter is in such volume as would unnecessarily cumber the record, such book, paper, or document will not be received in evidence but may be marked for identification and, if properly authenticated, the relevant and material matter may be read into the record, or, if the presiding commissioner or examiner so directs, a true copy of such matter, in proper form, shall be received as an exhibit, and like copies delivered by the party offering the same to opposing parties or their attorneys appearing at the hearing, who shall be afforded opportunity to examine the book, paper, or document, and to offer in evidence in like manner other portions thereof if found to be material and relevant. Cross Reference See sec. 13 (1), title 49, notes 170-172, Exhibits. (b) [Commission's files, except tariffs; records in other proceedings.] In case any matter contained in a report or other document, not a tariff schedule, on file with the commission is offered in evidence such report or other document need not be produced or marked for identification, but in other respects the provisions of the foregoing subdivision (a) of this rule will apply. In case any portion of the record before the commission in any proceeding other than the one on hearing is offered in evidence a true copy of such portion shall be presented for the record in the form of an exhibit, unless(1) The party offering the same agrees to supply such copy later at his own expense, if and when required by the commission; and (2) The portion is specified with particularity in such manner as to be readily identified; and (3) The parties represented at the hearing stipulate upon the record that such portion may be incorporated by reference, and that any other portion offered by any other party may be incorporated by like reference subject to (1) and (2); and (4) The presiding commissioner or examiner directs such incorporation. Any portion so offered, whether in the form of an exhibit or by reference, shall be subject to appropriate objection. Cross Reference See sec. 13 (1), title 49, note 134, Effect of admitting or withholding evidence; notes 165-168, Parol or extrinsic evidence. Notes of Decisions 1. Judicial notice.-The provision of the rule that the "commission will take notice of items in tariffs and annual or other periodical reports of carriers properly on file" does not mean that the commission will take judicial notice of all the facts contained in such documents, but that, as to items which it is desired be treated as evidence, there is no occasion for the parties to serve copies; and it is essential to the preservation of the substantial rights of the parties that specific reference to such items be made.United States v. Abilene & S. Ry. Co., 265 U. S. 274, 68 L. ed. 1016, 44 Sup. Ct. Rep. 565, affirming Abilene & S. Ry. Co. v. United States, 268 Fed. 102. (Editorial comment: Rule XIII (b), prior to this decision, read as follows: "In case any portion of a tariff, report, circular, or other document on file with the commission is offered in evidence, the party offering the same must give specific reference to the items or pages and lines thereof to be considered. The commission will take notice of items in tariffs and annual or other periodical reports of carriers properly on file with it or in annual, statistical, and other official reports of the commission. When it is desired to direct the commission's attention to such tariffs or reports upon hearing or in briefs or argument it must be done with the precision specified in the second preceding sentence. In case any testimony in proceedings other than the one on hearing is offered in evidence, a copy of such testimony must be presented as an exhibit. When exhibits of a documentary character are to be offered in evidence, copies must be furnished to opposing counsel.") (c) [Tariff schedules; exhibits to show tariff authority.] In case any matter contained in a tariff schedule on file with the commission is offered in evidence, such tariff schedule need not be produced or marked for identification, but the matter so offered shall be specified with particularity in such manner as to be readily identified and may be received in evidence subject to check by reference to the original tariff schedules so on file. All exhibits showing rates, fares, charges, or other tariff provisions must, by appropriate Interstate Commerce Commission number reference, indicate the tariff authority therefor, and if distances are shown must also show the authority therefor and, by lines and junction points, the routes over which the distances are computed. (d) [Copies of exhibits to opponent.] When exhibits of a documentary character are to be offered in evidence copies must be furnished to opposing counsel, unless the presiding commissioner or examiner otherwise directs. Notes of Decisions 1. Records in other proceedings.— | evidence even though defendants in Because of failure to furnish defendants with a copy as required by the Rules of Practice, the transcript of the record in a former proceeding, copy of which was introduced as an exhibit, will not be considered as in each proceeding were the same and the instant proceeding relates to the alleged failure of defendants to obey the order in the former proceeding. The act (sec. 17) contemplates that the commission make rules of practice, XIV. BRIEFS AND ORAL ARGUMENT (a) [Form and style of briefs; date.] Briefs must comply with the requirements of Rule XXI. The date of each brief must appear on its front cover or title-page. Each brief should contain an abstract of the evidence relied upon by the party filing it, preferably assembled by subjects, with reference to the pages of the record or exhibit where the evidence appears. It should include requests for such specific findings as the party thinks the commission should make. Cross References See sec. 13 (1), title 49, Argument, notes 190-199. Rule X-A (e), and (1), Argument in shortened procedure cases. (b) [Arrangement of contents; exhibits; index and citations; maps.] Exhibits should not be reproduced in the brief, but may, if desired, be reproduced in an appendix to the brief. Analyses of such exhibits should be included in the abstract of evidence under the subjects to which they pertain. The abstract of evidence should follow the statement of the case and precede the argument. Every brief of more than 20 pages shall contain on its front flyleaves a subject index with page references, the subject index to be supplemented by a list of all cases cited, alphabetically arranged, with references to the pages where the citations appear. In proceedings upon complaint alleging undue prejudice to or preference of any locality as contrasted with another locality or otherwise attacking a rate relationship the complainant should insert in his brief opposite the statement of the case a small map or chart of the territory showing the situation involved. (c) [Filing and service; copies for commission; application for extension.] Briefs not filed with the commission and served on or before the dates fixed therefor will not be received except by special permission of the commission. All briefs must be accompanied by notice showing service upon all other parties or their attorneys who appeared at the hearing or on brief, and 20 copies of each brief shall be furnished for the use of the commission. Applications for extension of time in which to file briefs shall be by petition, in writing, stating the facts on which the application rests, which must be filed with the commission at least seven days before the time fixed for filing such briefs, in cases where the parties and their attorneys are located east of El Paso, Tex., Salt Lake City, Utah, or Butte and Helena, Mont., and at least eight days before such time in cases where any of the parties or any of their attorneys are located at or west of the points named. |