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determination of the case was in the direction of substantial justice. The concluding sentence of the opinion, written by Judge Hammond, referring to the order of the Commission reads as follows:
"In any view, therefore, either because this order was not according to the right of the case, as we understand it, or because it directed an improper mode of redressing the abuse, if any existed, the decree must be reversed, and the cause remanded to the Circuit Court, with directions to dismiss the petition, with costs.”
Elsewhere in the opinion, which is long, exhaustive and able, the Court said:
“We have come to the conclusion that, so looking at the facts and circumstances of this case, none of the sections of this Act have been violated by the fact that the railroad company collects and delivers at the premises of the consignors and consignees at Grand Rapids, and does not collect and deliver at the premises of the consignors and consignees at Ionia. The two localities are widely separated in distance, and so related to the general trade with which this transportation traffic is concerned that they are not at all competitors with each other in that trade. It is found as a fact in this case that there is 'but slight competition' between them, and we take it, for practical purposes, that there is none. This extra accessorial service which is rendered at Grand Rapids could not well be an undue and unreasonable advantage or preference of a rival in trade,
when there is no competition in trade and such rivalry does not in fact exist.
“Our law affords abundant instances of its tender regard of the established customs of the people. We think that the consequences of the deprivation to the people of Grand Rapids of this custom may be held to be one of the circumstances which may relieve a carrier from the statutory obligation of equal facilities elsewhere, to say nothing of injury to itself. There having been no such long-established custom at Ionia, and their station having been located much nearer to the business portion of the town than at Grand Rapids, exhibits a dissimilarity of circumstances between the two places. *
"Finally we have a circumstance not more important than those to which we have adverted, but more striking in its appearance of importance, and that is the competition of rival carriers at Grand Rapids for the same traffic. It needs nothing more than the mere suggestion of the facts themselves to display the disadvantage there would be to this company if it remained with its station houses in the suburbs of Grand Rapids, without the privilege of collecting and delivering by carts, while its rivals had station houses located immediately in the business centre of the city. It does not, then, become a matter of competition and business rivalry, but substantially of the annihilation of the business of this company at that point, or, more intolerably, a denial to this company of the right to compete with its rivals as now it may. Its only possible remedy would be the building of its tracks into the city, at the cost we have suggested. There is no such condition or circumstance as this at Ionia. * * *
“Now, then, the only effect of the fact of competition, in such a state of things as that we have had at Grand Rapids, is that this carrier loses the traffic entirely, not because it cannot make, under the statute, a lesser rate to shippers on its lines than at Ionia, the shorter haul, but because it cannot afford them equal facilities of access. The statute cannot be violated merely to get traffic from a rival by giving lesser rates than to people more favorably situated; cannot bleed Ionia to make up for the misfortunes of competition at Grand Rapids, for Congress has prohibited such a practice, but it has not prohibited the carrier from resorting to a cheaper method of securing access at Grand Rapids than one more costly. It has not prohibited this company from entering into competition with its rivals by some mode of access to shippers at Grand Rapids, and why not this mode? It has not been prohibited from extending its lines and placing its station houses alongside of those of its rivals, and why should it be prohibited from sending its carts there? It has not, we think, and these prohibitions of the statute should not be allowed to so operate by mere construction of words.
“The whole of these dissimilarities of condition and circumstance, as between Grand Rapids and Ionia, whether of competition, or what not, may, in our view, be summed up in the statement that this particular carrier cannot have access to the traffic at Grand Rapids without this cartage service that is complained of by Ionia, while at that station it can have access to the relatively insignificant traffic there given to the carrier without it.”
The Supreme Court unanimously affirmed the conclusions reached by the Circuit Court of Appeals, but the opinion, by Judge Shiras, deals almost exclusively with questions of a purely legal character. It is noted, however that the practice of paying cartage at Grand Rapids had been "openly and notoriously” followed for twenty-five years and that in the case in hand there was no complaint "by any resident at Grand Rapids."
Orange Rates Case.*
Building up indirectly and by implication a power which is
not in terms granted.”—Decision of the Supreme Court in the “ Freight Bureau" cases.
This is the second of the cases, to be taken up in this memorandum, which were finally determined upon the interpretation of the law fixed by the Supreme Court in declaring that Congress has not conferred rate-making power upon the Commission. It was decided immediately after the case of the Commission vs. The Cincinnati, New Orleans and Texas Pacific (167 U. S. 479) popularly known as the “Freight Bureau” case (see page 111), in which the Supreme Court re-affirmed and explained the doctrine of the “Social Circle” case (162 U. S. 184). Judge Swayne, in the Circuit Court, and Judges Pardee and McCormick, in the Circuit Court of Appeals, decided in favor of the Commission. In neither case, however, is there a reported opinion and the Supreme Court merely entered a statement that the decision was controlled by that in the "Freight Bureau” case. It is not possible, therefore, to draw from the expressions of the courts any conclusions upon the question here under consideration.
* The Railroad Commission of Florida vs. The Savannah, Florida and Western Railway Company et al.; Interstate Commerce Commission (5 I. C. C. Rep. 13, and application for re-hearing denied, 5 I. C. C. Rep. 136), decided October 29, 1891. Florida Fruit Exchange vs. Same defendants; Circuit Court, Northern District of Florida (4 Inter. Com. Rep. 400), decided December 1, 1892. Savannah, Florida and Western Railway Company et al., Appellants, vs. Florida Fruit Exchange; Circuit Court of Appeals, Fifth Circuit (4 Inter. Com. Rep. 589), decided May 29, 1894. Savannah, Florida and Western Railway Company et al., Appellants, vs. Florida Fruit Exchange; Supreme Court (167 U. S. 512), decided May 24, 1897.
Import Rates Case.*
“The effort of the Commission, by a rigid general order, to de
prive the inland consumers of the advantage of through rates
seems to create the very mischief which it was one of the objects of the Act to remedy.”—Decision of the Supreme Court in this case.
* The New York Board of Trade and Transportation et al. vs. The Pennsylvania Railroad Company et al.; Interstate Commerce Commission (4 1. C. C. Rep. 447), decided January 29, 1891. Interstate Commerce Commission vs. Texas Pacific Railway Company; Circuit Court, Southern District of New York (52 Fed. Rep. 187), decided October 4, 1892. Interstate Commerce Commission vs. Texas and Pacific Railway Company; Circuit Court of Appeals, Second Circuit (57 Fed. Rep. 948), decided October 17, 1893. Texas and Pacific Railway Company, Appellant, vs. Interstate Commerce Commission; Supreme Court (162 U. S. 197), decided March 30, 1896.