"The only testimony offered or heard as to the reasonableness of the rate to Atlanta in question was that of the vice-president of the Cincinnati, New Orleans & Texas Pacific Company, whose deposition was taken at the instance of said company. The witness testified that he had been in the railroad service about twenty-six years, and had much to do with rates during all that time, and that he considered $1.01 per 100 pounds, in less than car loads, a reasonable rate on first-class freight from Cincinnati, Ohio, to Atlanta, Georgia. This statement or estimate of the rate from Cincinnati to Atlanta, we believe, is fully as high as it may reasonably be, if not higher than it should be; but without more thorough investigation than it is now practicable to make we do not feel justified in determining upon a more moderate rate than $1.00 per 100 pounds of first-class freight in less than car loads. The rate on this freight from Cincinnati to Birmingham, Alabama, is 89 cents, as compared with $1.07 to Atlanta; the distance being substantially the same. There is apparently nothing in the nature and character of the service to justify such difference, or, in fact, to warrant any substantial variance in the Atlanta and Birmingham rates from Cincinnati."

Discussing the foregoing the opinion of the Circuit Court

says:

"It will be perceived that the only finding of fact was the testimony of one witness that the rate of $1.01 was reasonable, and the comparative rate to Birmingham, on which

the Commission seems to lay stress. It seems that for a short time at least a rate of $1.01 was in force from Cincinnati to Atlanta, and that it was as to this rate that the testimony of one witness before the Commission was taken. It appears in evidence here that the rate from Cincinnati to Atlanta, in 1879, was $1.39, and that afterwards it was $1.10, and subsequently $1.07, except, perhaps, as stated, it was for a short time $1.01. As to the rate to Birmingham, there is evidence before the court, which was evidently not before the Commission, namely, that the rate from Cincinnati to Birmingham, which seems previously to have been $1.08, was forced down to eighty-nine cents by the building of the Kansas City, Memphis & Birmingham railroad, which new road caused the establishment of a rate of seventy-five cents from Memphis to Birmingham; and by reason of water routes to the northwest such competition was brought about that the present rate of eighty-nine cents from Cincinnati to Birmingham was the result. It seems to be no sufficient reason to determine the rate from Cincinnati to Atlanta unreasonable because of the lower rate to Birmingham, when such lower rate is caused by conditions which do not operate as to Atlanta.

*

"The conclusion of the Commission should undoubtedly be considered in connection with the facts on which that conclusion was based; and the principal fact which seems to have been in the mind of the Commission is satisfactorily explained here, as has been indicated. The evidence offered here on behalf of the railroads, is, in the opinion of the court, sufficient to overcome any prima facie case that may have been made by the findings of the Commission.

On the whole testimony, as now before the court, it is not believed that the Commission would have found the rate in question to be unreasonable."

The Circuit Court of Appeals reversed the decision of the Circuit Court and ordered the enforcement of the Commission's order relating to the Social Circle rate, but denied its petition as to the Atlanta rate. Both parties appealed to the Supreme Court, the Commission asking for the enforcement of its order as to the Atlanta rate, the railways seeking the reversal of the decree of the Circuit Court of Appeals as to the Social Circle rate.

The Supreme Court sustained the Circuit Court of Appeals on both points in a most notable decision, written by Judge Shiras, in which it declared that the Commission had not received from Congress the power to fix or make rates. This decision was rendered on March 30, 1896. The position taken by the Supreme Court in regard to the Atlanta rate is shown by the following:

"As already stated, the Circuit Court of Appeals adopted the views of the Circuit Court, in respect to the reasonableness of the rate charged on first-class freight carried on defendant's line from Cincinnati to Atlanta; and as both courts found the existing rate to have been reasonable, we do not feel disposed to review their finding on that matter of fact."

Cartage Case.*

"Not in fact the complaint of a shipper but of a rival and competing line.”—Dissenting opinion of Commissioner Bragg.

The complainants in this case were engaged in business at Ionia, Michigan, which is a point on the defendant's line between Detroit and Grand Rapids. The substance of their complaint was that the defendant supplied free cartage of freight between its depot in Grand Rapids and the stores, warehouses, etc., of its patrons, while the consignees and shippers at Ionia were required to perform their own cartage. The following stipulation of fact, among others, was agreed to by both parties before the Commission:

"That the respondent provides, at its own expense, drays, carts and trucks at the city of Grand Rapids for the service of transporting merchandise and freight generally,

* Mary O. Stone and Thomas Carten vs. The Detroit, Grand Haven and Milwaukee Railway Compaay; Interstate Commerce Commission (3 I. C. C. Rep. 613), decided April 26, 1890. Interstate Commerce Commission vs. Detroit, Grand Haven and Milwaukee Railway Company; Circuit Court, Western District of Michigan, Southern Division (57 Fed. Rep. 1005), decided October 6, 1893. Detroit, Grand Haven & Milwaukee Railway Company, Appellant, vs. Interstate Commerce Commission. Circuit Court of Appeals, Sixth Circuit (74 Fed. Rep. 803), decided April 14, 1896. Interstate Commerce Commission, Appellant, vs. Detroit, Grand Haven and Milwaukee Railway Company; Supreme Court (167 U. S. 633), decided May 24, 1897.

as well as merchandise and freight consigned from Philadelphia, New York, Boston, and points east of Detroit, between its station at Grand Rapids and the places of business of merchants, traders, and other patrons of its road at that place, which service it performs without additional charge to the owner or shipper of property on account thereof; that this service is not furnished to complainants or other merchants, traders, and patrons of its road at the city of Ionia; that this service at Grand Rapids has been openly and notoriously rendered for a long period of time, to wit, for twenty-five years and upwards; that its station at the said city of Grand Rapids is within the corporate limits thereof, and is on an average one-and-a-quarter miles from the business sections of said city where the traffic of the places tributary to respondent's road originates and terminates, while respondent's station for receipting and discharging freight and property at the city of Ionia is not to exceed an eighth of a mile from the business centre of said city; that at the city of Grand Rapids there are two other railroads, the Michigan Central Railroad and the Grand Rapids, Lansing and Detroit Railroad, both of which are immediately and directly in competition with respondent's road for the business of Grand Rapids; that the stations of both of said roads for receiving and discharging freight and property at Grand Rapids, are near the business centre of said city, requiring only short haul to and from their stations, on an average about one-quarter of a mile; that respondent did the carting of freight to and from its station at Grand Rapids, substantially in the same manner as at present, long prior to the time when either said Michigan