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Central or Grand Rapids, Lansing and Detroit railroads was constructed to that place.”
The schedule rates to Ionia and Grand Rapids were the same.
Three of the five members of the Commission took the view that to supply free cartage at Grand Rapids and not at Ionia, was illegal. They regarded it as an illegal concession from the published rate, as an unjust discrimination in favor of Grand Rapids and as in violation of the long and short haul clause. Commissioner Veazey did not sit in the case and Commissioner Bragg wrote an opinion strongly dissenting from the view of the majority. The latter said in part:
“If the construction of the statute reached in this proceeding by the majority of the Commission is to be adopted as the rule on this subject, the point of receipt or delivery of freight in every case may become material in determining the question of a violation of section four; or of an unlawful preference; or of an unreasonable or unjust prejudice; and towns where the station is comparatively distant may insist that other towns beyond them on the same line cannot enjoy the advantage of stations much nearer unless a corresponding change in rates is made because drayage is materially less. It will then logically follow and be next in order for us to prescribe what must be the average distance of a depot from the business portion of a town or city in order to avoid unjust discrimination, or unlawful prefer
ence, or undue or unreasonable prejudice to the business of such town or city.
As incident to its business, a carrier, like the defendant, has a right to engage in the cartage of goods to and from its depot. It may make a reasonable charge for this service; but if it does it must charge all alike for the same service at the same depot. In the accommodation of its traffic and in the exigencies of its business it may, as a transportation expense, make no charge for such service; but if it does this it must treat all alike at that depot and must not show preference to some over others in rendering the same service. * A depot warehouse is a convenience of which it may avail itself or not as it may determine the accommodation of its traffic requires at a particular station, or it may make personal delivery of freight to every consignee of that station, or receive at his place of business freight from every shipper at that station, provided in doing so it treats all fairly and alike and makes no extortionate charge for the service rendered. *
“It seems that for about three months the Michigan Central Railroad Company and the Detroit, Lansing and Northern Railroad Company transported their freight to and from Grand Rapids in the same manner that it is now complained by the Michigan Central Railroad Company that it is done by the defendant. But they abandoned this about twelve months ago, for what cause is not shown; and then petitioners were procured to make this complaint by the Michigan Central Railroad Company. By this method of business at Grand Rapids no injury or prejudice is shown to have been done to the business of Ionia and no shipper or consignee at Ionia complains of it or demands that the defendant shall do its business in this way at Ionia. This complaint is in substance and in fact the complaint of the Michigan Central Railroad Company, a rival and competitor of the defendant for the business of Grand Rapids, and the purpose of it is manifest; and this is stated in no spirit of criticism or censure, but as a fact that is deemed of some importance in the case, for it shows that it is not in fact the complaint of a shipper but of a rival and competing line, who alone is to be benefited by a decision against the defendant.” *
“A delivery or receipt of freight such as is here made by the defendant at Grand Rapids is made by railway carriers at other exceptional stations in the State of Michigan, and by railway carriers at exceptional stations in other States of the Union. Its origin, as a rule, is found in the fact that one carrier is unable to locate its depot otherwise than at a long distance from the business portion of a city or town, while other carriers have succeeded in establishing their depots near to or in the business portion of such city, or town. The carrier whose depot is thus located at the greater distance resorts to this expensive method of transporting its traffic and equalizing its terminal facilities, as far as this may be done in this manner, with those of its competitors in transporting freight to and from that town or city, as the case may be. Ordinarily other carriers adopt the same method of doing business at such city or town by way of competition.
"Actual and fair competition between carriers for transportation traffic was one of the chief objects aimed at by
Congress in the enactment of the Act to regulate commerce. This is apparent not only from the debates but from the section against pooling-section 5 of the Act. This view of the statute has been repeatedly recognized by the Interstate Commerce Commission in its annual reports and in its decisions. Where rival carriers are engaged in active competition for the business of a common point upon their lines, and of necessity make their transportation rates the same upon freight to and from that point, it is wholly immaterial upon a question of the justice and reasonableness of such rates, or whether they comply with the law as to the long-and-short-haul clause, that it costs one of them more than it does the other to transport the freight, or to receive or deliver it, for in every such instance that is more or less the case. In disposing of such a case the Commission would enter into no such question as that. The two cents per hundred pounds estimated as being expended by the defendant under the circumstances and conditions shown by the evidence in transporting freight to and from Grand Rapids is nothing more nor less than an expenditure of that amount in the cost it incurs in the transportation of its freight. Similar instances may be found in most, if not all, of the States of the American Union, in exceptional cases. incurred in such a case is met by the transportation rate charged, and is covered by that rate. A blow that strikes down the benefits of such competition to the business of Grand Rapids, and to the business of the defendant, and which will benefit alone its rival and competing lines at Grand Rapids, without conferring any benefit whatever
upon Ionia, and upon the grounds here claimed, is a result that, in my humble opinion, is not sanctioned by the Act to regulate commerce. The attempt to justify it on the ground that it is the extirpation of either an old or a young abuse is not warranted by the evidence in this proceeding and the statute we are required to administer.”
The Circuit Court directed the enforcement of the Commission's order although Judge Severens wrote a dissenting opinion, and Judge Taft, in delivering the opinion of the Court referred to the admission of counsel for the complainants before the Commission that his clients“had no real grievance, but were instigated to their prosecution by a competitor of the defendant, the Michigan Central Railway, which is paying the expenses of the litigation.”
Judge Severens said, among other things, of the argument which would sustain the Commission's order:
“The argument appears to me to rest upon unsubstantial grounds which have been swept away by the rulings of the Commission itself upon constructions of the law which have been acquiesced in as just and reasonable."
In overruling the Circuit Court and refusing to enforce the order of the Commission, the Circuit Court of Appeals left no room for doubt as to its opinion concerning the question here under consideration, which is whether the final