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quence of the reduction of from $10 to $15 per car, the rates, considered together, were just and reasonable, it follows that there can be no possible view of the case by which the conclusion that the rates were unjust and unreasonable can be sustained." *
“Being then constrained to the conclusion that the order of the Commission was not sustained by the facts upon which it was predicated, we cannot enter into an independent investigation of the facts, even if it be conceded, the record is in a condition to enable us to do so, in order that new and substantive findings of fact may be evolved, upon which the order of the Commission may be sustained.”
"The Danville rates are not unreasonably high."-Decision
of the Circuit Court in this case.
The complainants in this case asked the Commission to order a readjustment of the following rates to and from Danyille:
* City of Danville and others vs. Southern Railway Company and others; Interstate Commerce Commission (8 Inter. Com. Rep. 409 and 571), decided February 17, 1900; petition for rehearing dismissed November 17, 1900. Interstate Commerce Commission vs. Southern Railway Company; Circuit Court, Western District of Virginia (117 Fed. Rep. 741), decided August 4, 1902. Interstate Commerce Commission, Appellant, vs. Southern Railway Company; Circuit Court of Appeals, Fourth Circuit (122 Fed. Rep. 800), decided May 5 1903.
“First, those to Danville from northern and eastern cities; second, rates on sugar, molasses, rice and coffee from New Orleans to Danville; third, rates from certain western points to Danville; fourth, the rate on tobacco from Danville to western points.”
There appears to have been no suggestion that the rates questioned were excessive or unreasonable in themselves, but it was urged that they were unreasonable in comparison with those to Richmond and Lynchburg, particularly the latter. The case was heard and considered by the Commission as though the Southern Railway were the sole defendant. The position of that railway, as reported by the Commission, was as follows:
“The Southern came into this field of competition last of all. When that company determined to compete for this traffic it simply met the rates of the Chesapeake & Ohio and the Norfolk & Western which were already in effect, and this is all it has ever done. It has not reduced the Richmond or Lynchburg or Norfolk rate. It has not raised the Danville rate. It has in no way intensified the discrimination against Danville, but has simply left the situation where it found it. By entering this competitive field it did not injure Danville; to withdraw from it would not benefit Danville. The business is a source of some profit to the Southern company; therefore, that company should be allowed to continue in it."
The disposition of the case by the Commission is indicated by the following extract from its report and opinion:
"We think that under all the circumstances and conditions the rate to Lynchburg may properly be somewhat lower than the rate to Danville. We do not think that the present difference in rates is justifiable; or, in other words, we do not think that the circumstances and conditions justify the rates now in force. It is our opinion that rates from northern and eastern cities to Danville and rates from New Orleans upon the commodities mentioned in the complaint to Danville should not exceed those to Lynchburg by more than 10 per cent, and that rates between Danville and the west should not exceed those between Lynchburg and the west by more than 15 per cent. This also applies to the rate on tobacco from Danville to Louisville. It may well be called outrageous to impose upon the chief industry of Danville a rate from Danville to Louisville 15 cents above the rate from Lynchburg to Louisville, when the difference in rates upon that class of merchandise in the reverse direction is only 21 cents.
"Our conclusions being as above indicated, the question arises, What order can be made? We find that circumstances and conditions are different at Danville than they are at Lynchburg, and that that difference might justify a higher rate at Danville, but that there is no dissimilarity of circumstances and conditions that justifies the present rate. The decisions of the United States Supreme Court leave our power under the Fourth section in such a case somewhat doubtful. That court decides apparently that the question is not whether there is a difference in circumstances and conditions, but whether there is a sufficient difference to warrant the lower rate at the more distant point. The same reasoning would apparently lead to the conclusion that we might inquire whether the circumstances and conditions were so different as to warrant the rate actually in effect. For the purposes of this case we hold that the interpretation last suggested is the true one, and that inasmuch as the rates considered by us are not justified by competitive circumstances and conditions they are unlawful under the Fourth section.
“This question is not, perhaps, of much practical importance. The complaint alleges that the defendant by maintaining these rates not only violates the Fourth but also the third section of the Act, in that it creates and continues an unjust discrimination against Danville as compared with Lynchburg. We have found that the discrimination exists. We have found that it is without justification. It is, therefore, an unjust discrimination under the Third section, which must be prohibited. There is some question here as to whether this Commission has power to determine definitely for the future the relation in rates which should exist between Danville and Lynchburg, but unless these rates are adjusted in substantial accordance with the views hereinbefore expressed, we shall attempt to
"The testimony in this case was general, having reference to no special commodity except tobacco, sugar, molasses, rice and coffee. It may happen that the percentage of difference in rates between Lynchburg and Danville should be greater in case of some commodities than in others. The carriers themselves can make this readjustment in a much more satisfactory manner than can this Commission, and we have concluded to make no further order in the premises at present, in the hope that such a voluntary readjustment will be undertaken. If by May 1, next, the defendant has not put into effect rates substantially in accord with the views here indicated, we will then consider the matter further, and make some definite order in the premises.'
The defendants, on April 27, 1900, applied for a rehearing, but this petition was denied by a decision rendered on November 17, of the same year. In denying this petition, however, the Commission extended the time for compliance with its recommendations to December 31, 1900, saying:
“No order will be made until December 31, 1900. If the Southern Railway signifies by that time its disposition to endeavor to make this readjustment, such further time will be allowed as may be reasonably necessary. Otherwise an order will then issue in the premises."
An order finally having been issued and not complied with an application for its enforcement was made and denied. The Circuit Court said, in part:
The evidence in this case leaves no room for doubt that the competition at Lynchburg (as well as at Richmond), is real and substantial; that it comes about mainly, if not entirely, from conditions not within the control of the defendant; and that there is a modicum of profit to the defendant in transporting freight to and from Lynchburg and Richmond. It follows that in reaching a conclusion in this