dissimilar circumstances and conditions controlled the rates to the respective points. The opinion of the Commission discloses the fact that no evidence was introduced in support of the contention that the rates to Griffin were in themselves excessive or unreasonable. Several witnesses testified that they were reasonable. The Commission further said that the question whether there was unjust discrimination against Griffin and in favor of Macon "is probably a question of law, depending upon the other facts herein found." The far greater portion of the opinion, and apparently of the testimony, was devoted to the question whether there existed the substantial dissimilarity of conditions and circumstances, as between Griffin and Macon, necessary to render the long and short haul clause inapplicable. The following are extracts from the report and opinion of the Commission:

"Atlanta is what is called, in the parlance of southern rate-making, a basing point. Griffin is not a basing point. The rate to Griffin is made by adding to the Atlanta rate the local rate from Atlanta to Griffin. Macon is also a basing point, and the rate to Macon and Atlanta is in most instances the same. * * The defendants contended in the first place that the rates to Macon were affected by water competition. Macon is situated upon the Ocmulgee river. The Altamaha river is formed by a junction of the Ocmulgee and Oconee rivers, and empties into the ocean between Savannah and Brunswick. Regular lines of freight

and passenger steamers run between both of these ports and New York City. Lines of railway also lead from both Savannah and Brunswick to Macon, and freight is carried by ocean and rail from New York to Macon over these lines of railway upon a joint through rate. The defendants also claimed that competition between railroads and markets created the necessary dissimilarity of circumstances and conditions. Five independent lines of railway enter Macon. These lines through their different connections by rail, and by rail and water, reach all parts of the United States and actively compete for business from all available directions.

"By means of these railway lines the markets in all parts of the United States are brought into connection with Macon, and many of those markets seek a rate which will enable them to dispose of their various products in Macon. Under the present adjustment of rates, the supplies consumed in Macon are obtained both from the eastern and from the western markets. **The defendants insisted that the Macon rate was made by conditions over which they had no control, and that it was beyond their power to alter this rate. If the Macon rate was fixed and they had no right under the law to make higher rates to intermediate points between Macon and Atlanta, then one of two things must happen, either they must raise their rate to Macon, and so entirely lose that competitive business, or they must lower their rates to intermediate points and so lose the difference between the present rates and the Macon rate; and the Central of Georgia Railway insisted that in either case its revenues would be unwarrantably crippled. * * *

We hold upon the findings before us that Griffin is entitled to as low a rate from Louisville and Cincinnati as is Macon, and that the charge of a higher rate is an unjust discrimination under Section Three. * * * Are the rates complained of in violation of the 4th section? Confessedly they are, unless justified by dissimilar circumstances and conditions.

"The defendants rely upon water competition to make out the necessary dissimilarity, but there are no facts in the case upon which to base that contention. * * * The defendants also rely upon competition between railroads and markets. This competition does undoubtedly exist in a most active form, and is the controlling factor in making the Macon rate; but that it creates such dissimilarity of circumstances and conditions as will justify the carrier in charging more for the short than for the long haul without an order of this Commission is no longer an open question with us. * **If by the reduction of the rate to intermediate points the revenue of the Central of Georgia Railway Company will be unwarrantably lessened—and upon that question we express no opinion-then the defendant should readjust its rates by raising the Macon rates sufficiently to offset the reduction to intermediate points, and thereby remove the present unjust discrimination. Its answer is that it could not, if it would, do this; that the Macon rate is beyond its power to modify. The Macon rate is the result of agreement. The Central of Georgia Railway Company is a party to that agreement, and has the same power over it that every other party has. If it has not sufficient influence to secure the adoption of such rates as

will, under the law, yield to it a proper revenue, that is the misfortune of those who have become the owners of this property, which must be endured as every other misadventure of business is."

In accordance with the opinion containing the foregoing the Commission ordered the defendants to "cease and desist" from charging more to Griffin on shipments from Cincinnati and Louisville, than to Macon. This order the Circuit Court refused to enforce, declaring that it was not a "lawful order." The Court said, in part:

"There is no contention that the Macon rates are in themselves unreasonable. By what specific charge, and by what specific facts, then, is the finding of unjust discrimination supported? Not, certainly, by the mere fact that the Griffin rate is higher and the Macon rate is lower. There can be no unjust discrimination of which commissions and courts can take cognizance, * * * unless it also be an unlawful discrimination. To have merited the animadversions of the Commission, these rates relative to these two Georgia cities must have been denounced by positive law, or its necessary implications.**** There are many circumstances and conditions at the important distributing point Macon

* The Court quoted here from the opinion of the Commission, written by Judge Cooley, in re Louisville & Nashville. The extract selected by the Court includes the following: "The courts and the commissions of the United States must look to what is expressed or necessarily implied by the law for their authority to decide issues, and thus ascertain and determine the rights of contending parties."

affecting railroad rates which do not exist at Griffin, * * It cannot be doubtful that it is easily feasible for Macon merchants to confront the railroads with water competi

tion, * * * But water transportation is not the im

portant element of that strenuous competition between carrier and carrier and market and market which makes the conditions and circumstances at Macon so dissimilar from those at Griffin. It is perhaps enough to point out that the Commission reports this competition to exist in its most active form. To test the extent of these dissimilar conditions, I have but to point to what would be the result if the Macon rates were advanced to equal the Griffin rates. Railroad competition at Macon exceeds that at Griffin as the competing roads which center at Macon exceed the competing roads which pass Griffin, and the competition of markets which Macon merchants are compelled to meet is far greater than that which confronts the Griffin merchants. To illustrate, Macon competes with Savannah for the trade of much of the country traversed by the main line of the defendant company. It competes with Eufaula and Columbus on the Southwestern Railroad and its several branches, and the several other lines reaching the city with numerous markets and communities, none of which the merchants of Griffin can reasonably hope to reach. It is evident, therefore, that, since these competitive markets have, many of them, equal advantages in rates with Macon, if there be an advance in the cost of transportation, the commerce of Macon would be destroyed in exact proportion with its inability to meet the prices of its competitors. While this is true, the producers and consumers at Griffin would not be