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desire for a hearing in the matter, and in such case the facts stated in the complaint will be taken as admitted. Filing of an answer will not be deemed an admission of the sufficiency of the complaint, but motion to dismiss for insufficiency may be made at the hearing.

SERVICE OF PAPERS.

VI. Copies of notices or other papers may be served upon the opposite parties to the proceedings, personally or by mail, and when any party shall have appeared by attorney, service upon the attorney shall be deemed service upon the party.

AFFIDAFITS.

VII. Affidavits to the petition, complaint, or answer, may be made before a notary public, justice of the peace, or other officer authorized to administer oaths.

AMENDMENTS.

VIII. Upon the application of any petitioner or party, amendments may be allowed by the secretaries in their discretion, to any petition, answer, or other pleadings in any proceeding before the board.

ADJOURNMENTS AND EXENSION OF TIME.

IX. Adjournments and extension of time may be granted upon stipulations of parties, duly signed and filed with the secretaries, or upon application of parties, in the discretion of the board.

STIPULATIONS.

X. Parties to causes or proceedings before the board may, by stipulations, duly signed and filed with the board, agree upon the facts, or any portion of them deemed to be involved in the controversy, which agreed statements

shall be regarded and used as evidence. It is desirable that the facts be thus agreed upon whenever practicable.

HEARINGS.

XI. Upon issue being joined by the service of answer, the board will assign a time and place for hearing the same. Witnesses will be examined orally before the secretaries. The petitioner or complainant should prove the existence of the facts alleged to constitute a violation of the act unless the respondent shall admit the same or shall fail to answer the complaint. The facts alleged in the answer must be proved by the carrier unless admitted by the petitioner. In case of failure to prosecute a complaint after issue being joined, and the board being without advice of satisfaction as provided in Rule IV, or in case of failure to answer, the secretaries will take such proof of the charge as may be deemed reasonable and proper and make such recommendation thereon to the board as the circumstances of the case appear to require.

WITNESSES.

XII. Subpoenas requiring the attendance of witnesses will be issued by either of the secretaries in all cases and proceedings before the board, and witnesses will be required to obey the subpoenas served upon them, requiring their attendance, or the production of books, papers, tariffs, contracts, agreements or documents relating to any matter under investigation or pending before the board. When a subpoena is desired for the production of books, papers, or other documentary evidence, a special application should be made to the secretaries therefor, specifying the documentary evidence desired.

PROPOSED FINDINGS OF FACT.

XIII. Upon the final submission of the case, after hearing had before the secretaries, either party may

submit proposed findings of fact for the consideration of the secretaries, which findings must embrace only the material facts of the case supposed to be established by the testimony.

REHEARINGS.

XIV. Notice of the session of the board at which the secretaries intend submitting findings of fact, reports and conclusions relating to any case and proceeding pending before the board will be served, with copies of the findings of fact and conclusions, upon the parties, not less than fifteen days preceding the date of the session indicated. Applications for a rehearing before the secretaries may be made by either party at any time after the service of the findings of fact and conclusions, and prior to the session of the board indicated, as heretofore provided. Such application must be by petition, and must state clearly the findings of fact and conclusions of law supposed to be erroneous. If the application be to give further testimony, the nature of the additional testimony must be briefly stated, and it must not be merely cumulative. The petition must be verified in the same manner as a complaint, and a copy thereof, with a notice of the time and place of the application, must be served upon the opposite party at least three days preceding the day named for the application.

COPIES.

XV. Copies of any petition, complaint or answer in any matter or proceeding before the board, or of any order of the board, or report and opinion of the secretaries, and also the testimony, when practicable and desired for use in the case, will be furnished without charge, upon application to the board by any person or carrier, party to the proceeding.

NOTE-Forms applicable in cases and proceedings before the board under the above rules will be found in the appendix to this volume.

J. R. MANNING AND J. R. SUTHERLAND, v. THE CHI CAGO, ST. PAUL, MINNEAPOLIS & OMAHA RAILWAY COMPANY.

Heard at Tekamah, Apir) 4, 1889.-Report filed July 25, 1889.

Comparison of rates of transportation with rates legislatively established by various states really prove nothing and cannot be adopted as standards in producing conviction upon the question of reasonableness and justice of rates.

The reasonableness of a rate as between the shipper and the carrier is known as that rate which earns for the carrier that proportion of some return upon the capital invested, after paying fixed charges and operating expenses, which the particular traffic in question bears to the entire traffic of the road-each commodity modified in its relations to all others with respect to the insurance risk entailed upon the carrier, with respect to specific gravity of cubical contents and with respect to the conditions and force of competition.

Local rates far in excess of long established rates on interstate traffic, the performance of which is under circumstances and conditions substantially similar to local traffic, are unjust and unreasonable.

Coal in bulk admits of cheap carriage demanding of carriers only the cheapest grade of cars, while insurance risk is insignificant and the labor of receiving and delivering is the minimum.

Held that existing rates for local transportation of coal are excessive, unjust and unreasonable, and a just and reasonable schedule of rates recommended.

Live stock transportation is essentially different from all other carload traffic; a high character of service is indispensable, speed and special and superior equipment being weightier in good results to shippers than questions of the rate per ton per mile.

Comparison of Nebraska local rates for the transportation of live stock with interstate rates do not show the local rates proportionately higher than the interstate rate, and while local rates in adjacent states are less than in Nebraska, there is hesitancy in recommending a reduction without first affording opportunity for all carriers affected by a decision to make all proper explanation and to call attention to any proper distinguishing characteristics of their traffic and its conditions.

Complainants appeared, unassisted by counsel.

James H. Howe and J. B. Barnes, for Defendant.

REPORT AND OPINION OF THE SECRETARIES.

GARBER, Secretary:

The complaint in this proceeding is against the reasonableness and justness of the live stock and coal rates of the Chicago, St. Paul, Minneapolis and Omaha Railway Company, between Wayne, in Wayne county, and

Omaha; and between Tekamah, in Burt county, and Omaha.

The complaint avers that the rates charged by the railroad company for transporting hogs and cattle from Wayne and Tekamah to Omaha, are as follows:

On Cattle:

From Wayne to Omaha, 15 cents per 100 pounds. From Tekamah to Omaha, 93 cents per 100 pounds. On Hogs:

From Wayne to Omaha, 183 cents per 100 pounds. From Tekamah to Omaha, 11 cents per 100 pounds. Minimum weights for cattle, 20,000 pounds; for hogs, 15,000 pounds:

And that the rates charged for the transportation of coal in car-load lots from Omaha to Wayne and Tekamah are as follows:

To Wayne, 9 cents per 100 pounds.

To Tekamah, 7 cents per 100 pounds.

The complaint avers these charges to be in excess of reasonable and just charges, to the extent of 40 per cent on cattle and hogs and 50 per cent on coal.

The answer of the Chicago, St. Paul, Minneapolis & Omaha Railway Company to the complaint denies that its charges for the transportation of cattle and hogs are as stated in the complaint, and states that for transporting cattle and hogs from Wayne and Tekamah to Omaha its charges are as follows:

From Wayne, $30 per car.
From Tekamah, $19 per car.

These rates applying on cars thirty feet and six inches in length, for the minimum weight of 20,000 on cattle and 15,000 pounds on hogs; that for cars twenty-nine feet in length, its charges are 94 per cent of the thirty-foot sixinch car rate; that on cars over thirty feet and six inches in length, to and including thirty-three feet in length, its

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