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the rule most likely to prove beneficial in practical operation is the rule which accords the right of routing to the carrier."

Kearney Case.*

The mere fact that the disparity between the through and the local rates was considerable did not, of itself, warrant

* finding that such disparity constituted an undue discrimination.Decision of the Supreme Court in the "Import Rates" case.

The complainant before the Commission, a citizen of Kearney, Nebraska, a traveling salesman by vocation, alleged that rates from Pacific Coast points in California to Kearney, were unreasonable and unjust as compared with those from the same points to Omaha. While other commodities were referred to in the complaint, the case appears to have been heard, and considered on the question of the reasonableness of the rates on sugar. Among the findings of fact by the Commission is the following:

“In charging a higher rate on sugar or other commodities from California points to Kearney, the shorter distance, than it charges to Omaha, the longer distance, the defendants, the Burlington & Missouri River Railroad in Nebraska, is not violating the Fourth section of the Act, for the reason that the shorter distance to Kearney is not included within the longer distance to Omaha. The carriage of such freight consigned to the places named is over the same line in the same direction, only so far as Kenesaw, Nebraska, at which point that for Kearney diverges and is carried thence over another of defendant's lines, while that for Omaha continues along the same line. This being the case the necessity for further consideration of the allegation of a violation of section four on the part of this defendant in connection with its charges from California points to Kearney and Omaha is eliminated. The Union Pacific Railway Company with its Western connection, the Southern Pacific Company, then, are the only defendant carriers open to a charge of possible violation of the provision of Section Four in respect to their charges on this particular traffic.”

* A. J. Gustin vs. Burlington & Missouri River Railroad in Nebraska et al.; Interstate Commerce Commission (8 Inter. Com. Rep. 481), decided March 9, 1900.

The Commission concluded that the Union Pacific and Southern Pacific in the carriage of sugar over their connecting lines from the Pacific coast to Omaha meet competitive conditions which do not exist at Kearney, and that these differences in conditions justify a somewhat lower rate to Omaha than to Kearney. The difference which should be permitted, however, ought not, in the Commission's opinion, to exceed 15 cents per 100 pounds, while the difference in effect at the time the decision was rendered was 27 cents. The Commission recommended, therefore, that while the rate of fifty cents per 100 pounds, then in force to Omaha remained in effect, the rate to Kearney should not exceed 65 cents per 100 pounds.

The decision of the Circuit Court in this case has not yet been reported. The Commission states, in its Eighteenth (1904) Annual Report (page 80), that the court has refused to enforce the order on the ground that the Kearney rate was not found to be unreasonable in itself and that it ought. not to have been compared with the Omaha rate which was controlled by competition.

Hay Case.*

If no lawful order has been made there is no order to enforce."

- Decision of the Circuit Court in this case.

This case involved the legality of the transfer of shipments of hay and straw in car loads from the fifth to the sixth class, which was made by the defendant carriers on the first day of January, 1900. The Commission ordered the restoration of the old classification. The Circuit Court did not

* The National Hay Association vs. Lake Shore & Michigan Southern Railway Company et al.; Interstate Commerce Commission (9 Inter. Com. Rep. 264), decided October 16, 1902. Interstate Commerce Commission vs. Lake Shore & Michigan Southern Railway Company et al.; Circuit Court, Northern District of Ohio, Eastern Division; is not reported.

consider this a “lawful order” and dismissed the petition, of the Commission, for its enforcement. The Court said in part:

“The defendants object to a decree in this cause against them, first, for the reason that the order made by the Commission is not a lawful order, in that it is an attempt to fix rates. It is undoubtedly the law, as shown by ample authority, and was so conceded at the hearing, that the Commission has no power, directly or indirectly, to make an order fixing rates to be observed in the future. The order made by the Commission, and sought here to be enforced, undeniably undertakes to fix a rate for the carriage of hay and straw, by ordering that the defendant companies shall cease and desist from failing and neglecting to properly classify hay and straw in car loads as sixth-class freight, with other articles included in class 6 of their freight classification, and from failing and neglecting to apply sixthclass rates for the transportation of hay and straw when shipped in car loads. There is another provision of the order, to the effect that the railroad companies shall cease and desist from classifying hay and straw in car loads as fifth-class freight and from charging and exacting fifth-class rates for the transportation of such commodities in car load quantities. * *

"It is no province of this court to sit in review of the order of the Commission. This hearing is de novo, and this suit, as has been stated, has for its purpose the enforcement of a lawful order of the Commission. If no lawful order has been made, there is no order to enforce. * * *

"The question arises, Can the first part of the order which directs the defendants to cease and desist from keeping hay and straw in the fifth class and charging the rates attached thereto stand alone without support from the last part of the order, which directs that hay and straw shall be placed in the sixth class and be subject to the freight rate attached to that class? If only the second part of the order had been made it would have included the first. An order that hay and straw shall be put into the sixth class contains within itself an order that it shall be taken from the fifth-class, since commodities cannot be in two classes at the same time any more than a physical object may be in two localities at the same time. It seems plain, from the opinion of the Commission and its findings of fact that what was sought to be done was to remedy what appeared to the Commission to have been the unlawful conduct of the defendants, to wit, the raising of hay and straw from the sixth class to the fifth. The order, therefore, was adopted to compel the railroads to reverse their action and restore hay and straw to the sixth class.

“I find, then, that the order, as an entirety, is beyond the power of the Commission to make, and is, therefore, not a lawful order, and is not an order which this court is empowered by the statute to enforce.

“It has been urged in behalf of the Commission that the court has general equity powers in this cause to make such mandatory injunction, other than the enforcement of the order of the Commission, as will satisfy justice. The Act itself confines the action of this court to the enforcement of the lawful orders or requirements of the Interstate Com

*

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