duty of the Commission to keep in view not only the rights and interests of producers, but those of consumers as well.

It can be no duty of the Commission to equalize natural advantages between localities through the adjustment of tariff rates. If any carrier desires to foster languishing industries situated on its line for the purpose of increasing the traffic of such carrier, it has, we think, the right to do so; and if the roads leading west from Detroit, with their connections, wish to make a rate whereby the salt producers of Detroit may be enabled to market their product on the Missouri River, they are so privileged; but this fact can in no wise affect the through rate from Manistee and Ludington, nor can it in any way determine the reasonableness of the division received by the Boat Line. This through rate and the division in question must stand on their own merits, and cannot be disturbed unless found to be illegal.

It should be borne in mind that, generally speaking, the public is not interested in the division of a through rate, and the Commission therefore, has no authority to condemn the division of a rate, unless a part of the through line and the article shipped have a common ownership, and a grossly excessive division is made for the purpose of paying a rebate.

While the salt is owned by one corporation and the Boat Line by a wholly separate and distinct corporation, yet a controlling interest in both is exercised by the same persons, and, with one exception, the officers are the same in both concerns. The stockholders, however, are not the same. The relations between these two corporations are so intimate and their financial interests so nearly identical that we should not hesitate to condemn this division of the through rate, provided we could find that the division paid the Boat Line was in effect a rebate.

It appears that the funds of the Boat Line have never been mingled with those of the Salt Company, but on the contrary have been kept wholly separate and distinct. It appears also that while the Boat Line has made some money, it has never been able to pay its stockholders a dividend, its surplus earnings after paying the legitimate expenses of the company having been used in improving its transportation facilities.

The traffic conditions surrounding Manistee and Ludington place the Boat Line in a position to demand a large division of the through rate and a large division has, in our judgment, been received by it. Doubtless the Boat Line made the very best bargain it could with the roads respecting that matter, and to this end utilized every advantage at its command. Under the present state of the law, the Commission has no power to prevent it from so doing, unless, as we have seen, the division is so grossly excessive as to amount to a rebate. It is not sufficient to show that the division awarded the Boat Line is one about which persons informed respecting such matters might differ. It must appear, after considering all the facts and circumstances in the case, that it is grossly out of proportion to the value of the entire through service rendered, and that it in fact covers a rebate. We do not feel justified, from the facts appearing in this record, in so holding, and these proceedings will, therefore, be dismissed.

No. 615.

THE RAILROAD COMMISSION OF KENTUCKY

v.

THE LOUISVILLE & NASHVILLE RAILROAD COM

PANY.

Decided March 17, 1904.

Defendant is party to a contract with the Bourbon Stock Yards Company for the exclusive delivery of live stock in the city of Louisville only to the yards of that company, and when live stock coming over its lines is consigned to the Central Stock Yards, a competitor of the Bourbon Yards, at Louisville, defendant refuses to transfer such live stock to the Southern Railway for delivery to the Central Yards. The defendant ought, in fair consideration of all interests, to deliver to the Southern Railway live stock so consigned to the Central Yards, but the question raised for determination is whether the Commission can by its order require this to be done. Decisions of Federal courts cited and applied and, Held,

1. That defendant in making and carrying out its exclusive contract with the Bourbon Stock Yards Company is not acting in violation of the Act to regulate commerce.

2. That the Act to regulate commerce does not confer upon the Commission authority to make an order affirmatively requiring a railway carrier to deliver carloads of interstate freight to a connecting carrier. 3. That upon the facts of this case it is not an unlawful discrmination between commodities for the defendant to deliver carloads of dead freight to the Southern Railway for consignees in Louisville and to refuse delivery of live stock to the Southern Railway at Louisville when consigned to the Central Stock Yards.

4. That the Commission has no regulating authority beyond that conferred by the terms of the Act to regulate commerce and its jurisdiction does not extend to enforcing provisions in the Constitution of the State of Kentucky.

Dodd & Dodd and W. M. Smith for complainant.

Ed. Baxter, Helm Bruce and Chas. N. Burch for defendant.

REPORT AND OPINION OF THE COMMISSION.

PROUTY, Commissioner:

The Bourbon Stock Yards were built at Louisville, Kentucky, in 1859, and have been from time to time enlarged and improved. They are owned and operated by the Bourbon Stock Yard Company, are situated upon the line of the de fendant, the Louisville & Nashville Railroad Company, and can only be reached by rail over that railroad.

September 20, 1888, a contract was entered into between the defendant, Louisville & Nashville Railroad Company, and the Bourbon Stock Yard Company, by the terms of which the stock yards company agreed to provide all suitable and necessary facilities, to load, unload and care for, at its own risk, all live stock which might be delivered to it by the defendant, or which might be presented for shipment over the lines of the defendant, to collect whatever freight money might be due to the railroad company upon incoming freight and pay over the same, and to act generally as the agent of that company in all matters relating to the receipt and delivery of its live-stock shipments. For these services it was to charge no more than other stock yards situated in the city of Louisville, and not to exceed 50 cents per car, and was to charge the public for those services usually rendered by stock yards and not included in the receipt or delivery of the stock, a reasonable price. The railroad company upon its part agreed not to establish a stock yard itself at Louisville, nor to sell land for that purpose, or otherwise facilitate that object. It also agreed to deliver and unload, in so far as it legally could, at the yards of the Bourbon Company all live stock shipped over its lines to Louisville, and to make said yards its exclusive live-stock depot in that city. July 12, 1897, this contract was extended for a period of ten years from the date of its expiration. The parties have been since the execution of the original contract, and still are, operating under same.

In the summer and fall of 1901 the Central Stock Yards were established by a company of that name. These yards are situated just outside the corporate limits of the city of Louisville, upon the line of the Southern Railway, and can only be reached

by that railway. They are similar in use to the Bourbon Stock Yards, were erected as a rival of that enterprise, and when opened for business, in December, 1901, became at once its competitor at Louisville.

Eight or nine independent railroads enter the city of Louisville, and all transport, to some extent, live stock. The only stock yards are the Central and the Bourbon, except one or two small establishments, which are controlled by the latter company. Live stock must therefore be marketed ordinarily at one or the other of these places. The different railroads have at various points and in various ways such physical connection that is ordinarily possible to send a carload of live stock arriving at Louisville over any line to either one of these stock yards. The Southern Railway makes the Central Stock Yards its live-stock depot, but it and all other lines except the defendant allow the shipper to designate the stock yards at which he desires delivery to be made, and the car upon arriving at Louisville is switched to that destination. The Louisville & Nashville declines to do this, and insists upon making delivery according to the terms of its contract at the Bourbon yards.

The Central Stock Yards Company, claiming this to be a violation of certain provisions of the Constitution of Kentucky, obtained from a state court a mandatory injunction compelling that company to receive at points within the State of Kentucky, bill, transport and deliver to the Southern Railway cars of live stock destined to the Central Stock Yards. In obedience to that injunction, the defendant has for some months past so transported stock from points within the State, but from points without the State it still declines to make delivery except at the Bourbon yards. This proceeding is brought for the purpose of forcing it to deliver live stock taken up by it at points without the State, in the same manner that it now delivers live stock shipped from points within the State. The Railroad Commission of Kentucky acts as complainant agreeably to the provisions of the Act to regulate commerce, and the traffic with respect to which this proceeding is prosecuted and the defendant in the handling of that traffic are subject to said Act.

The defendant alleged as one reason why it ought not to be