ableness of present rates, the Act having abolished special and preferred rates. 32. And, as the Commission has exclusive jurisdiction over interstate rates, it is not necessarily bound to follow decisions of State commissions.33 There may be a presumption that rates fixed by a State commission are reasonable, and the burden of proof is upon the railroad companies to show the contrary, but the presumption is not binding upon the Interstate Commission.34 In comparing rates it is to be noted that traffic demanding special service is not justly compared with traffic not asking such consideration.35 The public is entitled to depend, within bounds, upon the continuance of rates when they are once established.36 It has often been pointed out that the long existence of a rate prejudices an advance.37 For that reason among others, an advanced rate in the absence of good showing by the carriers tending to justify the advance, will be presumed to be unreasonable.38 But while it is always persuasive, yet it is not conclusive that, because rates were lower at one time, the present rates are unreasonable.39

§ 445. Rates unreasonable in themselves.

Occasionally a case will come up when the competition between the principle of protecting the carrier in its fair return and the principle that no more than a reasonable charge should be exacted from the shipper is not a difficult issue to decide. For sometimes the unreasonable character of the charge exacted will be so apparent that the case for the shipper will be unaffected by the most skillful argu

32 Myers V. Pennsylvania Co.,

2 Int. Com. Rep. 403, 2 I. C. C. 573. 33 Railroad Commission of Wisconsin v. C. & N. W. Ry., 16 I. C. C. 85.

34 Brabham v. Atlantic C. L. R. R., 11 I. C. C. Rep. 464.

35 Waco Freight Bureau v. H. & T. C. R. R., 19 I. C. C. 22

36 Western Oregon Lumber v. S. P. Co., 14 I. C. C. 61.

37 Memphis Freight Bureau v. L. & N. R. R., 26 I. C. C. 402.

38 Sunderland Bros. Co. v. P. M. R. R., 16 I. C. C. 450.

39 Lagomarcino-Grup Co. C. R. R., 16 I. C. C. 151.

v. I.

ment for the carrier. Thus in one case under examination by the Commission, 40 the railroad company met the charge that the rate established was unreasonable by attempting to show that they were earning no more than a fair return. But the Commission, in holding for the complainant, seized upon the obvious fact that the rates were plainly unreasonable in themselves. On that point it was said: "In the fiscal year which had just closed when this proceeding was commenced, the average rate received by the railway companies of the United States for hauling one ton of freight one mile, was less than 1 cent. The average received by the railway companies, including the defendants, operating in the territorial group composed of the States of Arkansas, Missouri, Kansas, parts of the States of Colorado and Texas, and Indian and Oklahoma Territories, and part of the Territory of New Mexico, was less than 1.2 cents. The Eureka Springs Railway Company received more than 10 cents per ton per mile, which is about nine times the average amount received by the railway companies operating lines in said States and Territories so grouped, because of similarity of, or in respect to, density of population, topography and nature of the country, character of industries served by railways, and other characteristics affecting the question of the cost and reasonable compensation for railway service." 41

40 Cary v. Eureka Springs Ry., 7 I. C. C. Rep. 286.

Nine mills per ton per mile is generally speaking too high a rate normally for low grade freight on longish hauls. Winston-Salem v. Norfolk & W. R. R., 16 I. C. C. 12.

41 A rate unreasonable in itself to the person served cannot stand. See New Orleans C. Ex. v. Cincinnati, N. O. & T. P., 2 Int. Com. Rep. 289, 2 I. C. C. Rep. 375; Cary v. Eureka Springs Ry., 7 I. C. C. Rep. 286.

The Commission is not ready to accept the theory that rates may be lawfully and reasonably increased by progressive advances as long as the traffic moves freely, and until the highest point under which the traffic will move freely is reached; some traffic will move, and reasonably freely, up to the point where the rate becomes prohibitive. Commercial Club of Omaha v. Anderson & Saline River Co., 18 I. C. C. 532.

446. What makes rates unreasonable?

Upon a complaint to the Commission for reduction of rates the burden is on the complainant to establish his case; it must affirmatively appear that charges assailed as unreasonable are so and ought to be reduced. 42 The reasonableness of a rate must of necessity depend upon the conditions surrounding the traffic at the time it moves. The length of the haul, the competition to be met, the cost of the service, the value of the service, the density or volume of the tonnage, as well as the general transportation conditions then existing, are factors that have a more or less definite relation to the rate that a carrier may reasonably demand for a transportation service. And these factors, except, possibly, the length of the haul, the grades and other transportation conditions, are in their nature neither permanent, nor fixed, but necessarily change with the general economic panorama.43 Where a change of rates would involve a reduction of rates on other competing lines not parties to the proceeding, and unsettle relative rates in a large extent of territory, such a change ought not to be made unless based upon clear grounds.44 While, as has been seen, the reasonableness of a rate may be tested by comparison with similar rates, such comparison alone, without other evidence, will not justify the conclusion that a rate is unreasonable.45 The Commission recognizes, therefore, that there can be no rule by which a set absolute maximum limit of reasonableness can be fixed with certainty of a demonstration; it all depends upon the preponderance of the evidence adduced in accordance with

42 Lincoln Creamery v. Union P. Ry., 3 Int. Com. Rep. 794, 5 I. C. C. 156; Duncan v. Atchison, T. & S. F. R. R., 6 I. C. C. Rep. 85.

43 Memphis Cotton Oil Co. v. I. C. C. Ry., 17 I. C. C. 313, 318.

44 Rice v. Western N. Y. & P. Ry., 2 Int. Com. Rep. 298, 2 I. C. C. 389; and see Dallas Freight Bureau v. Texas & P. Ry., 8 I. C. C. Rep. 33.

45 Allen v. Oregon Ry. & Nav. Co., 106 Fed. 265; Interstate Commerce Commission v. Nashville, C. & S. L. Ry., 120 Fed. 934, 57 I. C. C. A. 224; Kentucky R. R. Com'rs v. Cincinnati, N. O. & T. P. Ry., 7 I. C. C. Rep. 380; Chattanooga Chamber of Commerce v. Southern Ry., 10 I. C. C. Rep. 111.

principles of law applicable to the determination of facts. Therefore, when in 1910 by the Mann Act, the burden of establishing the reasonableness of an advance was shifted to the carrier, a change of great importance was made in the administration of the law, although the burden still rests upon a complainant seeking to have a rate reduced. 46

§ 447. Current rates for other transportation.

It would seem that while not the legal measure of proper charge, the current rates for other transportation within the same territory by the company in question or by other companies performing similar services, is evidence which will furnish a test for the value of the particular services in question. This was one of the strongest arguments brought forward in the "Naval Stores Case," 47 to show that the Savannah rates were themselves unreasonable. A part of the language of Judge Speer on this point is quoted to show this method of testing the reasonableness of rates by comparison of hauls on other lines similarly situated fairly comparable with the distances involved. "In every instance the average distance on the roads last mentioned to the point of destination is much greater than the average distance from Pensacola & Atlantic stations to Savannah, and yet the rate is invariably much less. We find that it costs more to ship cotton from River Junction to Savannah, 259 miles, than it does to ship cotton from Sneads, a station on the Pensacola & Atlantic, 6 miles from River Junction, to New York, a distance of 1,173 miles, or from the most distant point in Mississippi to Norfolk, 1,154 miles. The facts ascertained by the Commission and herein set forth are of the highest significance. In the absence of satisfactory reply by the respondents, they must control the action of the court." 48

46 Anadarko Cotton Oil Co. v. A., T. & S. F. Ry., 20 I. C. C. 43. 47 Interstate Com. Com. v. Louis

ville & N. Ry., 118 Fed. 613.

48 See, also, Freight Bureau v. Cincinnati, N. O. & T. R. Ry., 6 I. C. C. Rep. 195.

§ 448. Comparison with other rates.

51

Where the reasonableness of rates is in question, comparison thereof may be made, not only with rates on another line of the same carrier, but also with those on the lines of other and distinct carriers." But in determining the reasonableness of rates a comparison of one isolated rate with another is not sufficient; the whole field must be considered in order to approximate justice, and at best the result cannot be regarded as other than an approximation.50 Thus the unreasonableness of a rate for mileage tickets cannot be proved by showing that it is higher than the rate for commutation tickets. And a finding that the rates charged by railroads for shipments to a particular point are unreasonable in themselves cannot properly be based on evidence which only tends to show that they are too high as compared with the rates charged between the initial points and one or two other points.52 Any comparison of rates must first be shown to be proper by establishing a similarity in the rates compared.53 Thus rates on branch lines and main lines cannot be compared, because of this dissimilarity of conditions.54 Nor can rates in different sections of the country be used in comparison, because of the difference in costs.55 Rates in different directions cannot be compared, because it may be more advantageous to move traffic in one direction.56 Of course, even in a case of admitted simi

49 Cincinnati Freight Bureau V. Cincinnati, N. O. & T. P. Ry., 4 Int. Com. Rep. 592, 6 I. C. C. Rep. 195; Morrell v. Union Pac. Ry., 4 Int Com. Rep. 469, 6 I. C. C. Rep. 121.

50 Howell v. New York, L. E. & W. R. R., 2 Int. Com. Rep. 162, 2 I. C. C. 272.

51 Assoc. of Wholesale Grocers v. Missouri Pac. Ry., 1 Int. Com. Rep. 321, 1 I. C. C. 323.

52 Interstate Commerce Commis

sion v. Nashville, C. & S. L. Ry., 120 Fed. 934, 57 C. C. A. 224.

53 Evans v. Union Pacific Ry., 6 I. C. C. Rep. 520.

54 Northwestern Ia. G. & S. S. Assoc. v. Chicago & N. W. Ry., 2 Int. Com. Rep. 431, 2 I. C. C. 604.

55 Morrell v. Union Pacific Ry., 4 Int. Com. Rep. 469, 6 I. C. C. Rep. 121.

56 Duncan v. Atchison, T. & S. F. R. R., 4 Int. Com. Rep. 385, 6 I. C. C. Rep. 85.