186
88
FlmJliRAL ltEPORTIl:Il.
thongh made in goop to ,him upon the"reu'nquislnnent of Doran's ',entry';mch rUling':would'have beeurcontrllJ'Ylto that established'Jby, the later decisions' of the department; i,lllnd;.:certainly it cannot ' said' that, in following the later rulingS,;the secretary violated: any l'ecogaized rule of law; arid it is only'whenitds'madepiain tblat:the officers of the land department have,by'o. mistake of law, depri;.veda party of land to which he is ,rightfullyentltled that a court of equity is justified in setting aside the action' of the depa,rtment.·,Moore v. Robbins, 96U. S. 530; Marquez 'V; Frisbie, 101 U. R473; Quinby v. Oonlan, 104 U.s' 420., " ,', Being of tile 'opinion' that the'faets set forth in the bill herein filed do not make a case for the intervention of a court of equity. witl." in the rule laid down in thecasesi:cited, it foIIows,that the trial court did not err in dismissing the bill on the meri tis, and the decree . to that effect is affirmed.
INTERSTATE OQMMEHCE COMMISSION v. WESTERN & A. R. CO. et aL (Circuit Court,N. No. 524. June 15, 1898.)
the same Une,etc., apd t\1e circuII\stances and conditions at the long-pI' distance point are' substantially Ilimllar to those at the shorter distance polnts,it Is a vlolat'ion Of the fourth section; but If the circumstances and conditions at the' longer distance point are substantially dlsslmilar,wlthn the meaning .of t4e act, to those Jit the shol'ter distance point, the founl, section Is not violated. If the ,circumstilnces and conditions at the longer distance point are S11ll. stantially diilsithilar from those at the shorter distance point. then tlie 'fourth section Of the act Is Inapplicable. Cases cited and followed: In re Lonisvllle & N. R.Co., 1 Interst. Commerce Com. H. 57; 1 Interst. Commerce Com., H. 278; Inte'rstate Commerce Commission v. Atchillon, .T. & S.F. R. CO.,50, Fea.. 300; Behlmer v. Railroad Co., 71 1<'e,l, 839; Interstate Commerce Commission v. Alabama M. ny. 00.. 18 Sup. Ct. 45, HiS U. S.144, Case cited and disapproved: Interstate Commission v. East Tennes!!ee,,:\'.. &G. Uy. Co., 85 Fed. 107. 8. ,AND , ollyious and dfectiye circumstances that , Competition, lsoue, of . make the condltioris under '''hleb' Ii long and short haUl Is perfornJcd dissimilar. and as 'siiebmust been in the contemplation of· congress in the passage of 'th-e' RCt to, regufitu¥ commerce. Case cited: Interstate COllJtDerceCQIDnilss!@,v. Co., 18 Sup, Ct. 45, 1G8 U. 8.144. .. ' '!SAME"'"':CClMPli"flTiQN
If a greater chaFge be made for a shorter than for a longer distance onf
FOURTH SECTION OF THE ACT
itt)
REGUI,ATE COMMERCE.
2.
SAME.
,"
. "
,
Hail",ay . milY, rim',n dissiniilarclrcumstances. ,and con,dltions as exenipi the carrIer frotD, an ohser'l"ance of the long and 'short 'hllUlprovlslon; The fourtb,sectlon'declares that the carrier shall not make the higher .chargeti:Hhe nearer ·pGlnt under substantially similar circumstances ll.pd 'cPll-p.it!Qns.·lf, thecircumstllnces andcQndltions are not subst/lntlally sirnHarr theI,\ the ,liillctioI,\ d<Jes nqt apply, and the carrier is not bc;mnd, to p!garli,1t 'In the malHngof Its t4riffs.'.'Ff raUwaycompetltlon does actually the lratidlt the more idlstant;polnt, that rate is not madeUilder tbeisarhe cdricu.mstancell arid condltions lUI Is the rate at tbe
t\ YS.
"
INTERSTATE COMMERCE COMMISSION V. WESTERN & A. R. CO.
187
Intermediate the higher rate Is not prohibited. by the f\Jurth section. Cases clted:Savannab Bw-eau ot Freight & Transportation v. Rep. Charleston & S. Ry. Co., 7 Interst. Comm!!rce Com. R. 479; 11 Interst. Commerce Com. pp. 37--43.., SAME-POWER OIl' COURTS AND COMMISSION IN REGARD TO RATES.
Where the circumstances and conditions at the longer distance point are substantially dissimilar, the carrier may judge of this for Itself, In the first Instance, and fix the rates for the longer distance point without viofourth section of the act; but this does not preclude the courts lating or the commissIon from Inquli'ing as to whether the rates to the shorter dIstance points are unjust or unreasonable, or whether they constitute undue preference for, oriunjust prejudice against, any locality.' Case cited: Interstate Commerce Commission v. Alabama M. Ry. Co., 21 C. C. A. 51, 74 Fed. 723; Id., 18 Sup. Ct. 45, 168 U. S. 173. In order to constitute dissimilarity .under the fourth section of the act. the competition must be real, and not Imaginary or; trifiing.
6.
7.
THE THIRD SECTION OIl' THE ACT TO REGULATE COMMERCE-UNDUK PHEFEJ!. ENCE. . .
Railway companies are only bound to give the same terms to all persons alike under the same couditions and circumstances; and any fact which produces an Inequality of condition and a change of circumstances justl· fies an InequalJty of charge. Case cited: Interstate Commerce Commission v. Baltimore & O. R. Co., 12 Sup. Ct. 844, 145 U. S. 283. B. SAMlil-COMPETITION.
circumstances and conditions brought about by competition, it cannot be said to be a preference which Is undue or unreasonable. II. SAME.
If the lesser charge to the longer distance point results 'from dissimilar
.
All the evidence shows Is that the rate to Atlanta, the longer distance point In this case, Is forced on the railroad officials by competition. There is no evidence of any improper desire on the part of these officials to give Atlanta a lower rate or the local shorter distance points a hlgIierrate. The matter Is controlled by existing competitive conditions. Unless the rates complained of, as compared with each other, violate the fourth section of the act, there seems to be very little ground for claiming that they violate the undue-preference provision of the third section. Case cited: Intel'.. state Commerce Commission v. Cincinnati, N. 0.&. T. P. Hy. Co., 56 Fed. 947,948. Government should not undertake the Impossible, but Injurious, task of making the commercial advantages of one place eqlllli to those of another. It might as well attempt to equalize the Intellectual powers of Its people. There should be no attempt to deprive a community of its na,ural advantages, or those legitimate rewards which fioW from large Investments, business Industries, and competing systems of transportation to facilitate and Increase commerce. The act to regulate commerce has no such purpose. Case cited: Brewer v. Railway Co., 84 Fed. 258. The first section provides that all charges for the transportation of property, etc., Shall be reasonable and just. There Is no evidence to justify a finding that the rates charged to the shorter distance points in this case are unjust and unreasonable In and of themselves. The mere fact that lower rates Which are charged to a longer distance competitive point pay something above the cost of the service of'carrlage does not show that the shorter distance rates are unreasonable. '-; The rates to tlle shorter distance. !l0ints In this case' are 'made up of a highly comPetitive rate from point of shlp!lleI,ltto Chattaqoogll, added to a local rate to destination fixed by the Georgia Railroad 'Commission. The rates In question, when separatelycbnsldered,are not unreasonable Qr . ' . '
10·. SAME.
11.
THE FIRST SECTION OF TIlE ACT TO REGULATE COMMERCE-REASONABT.El:NESS OF. RATES IN AND OF THEMSELVES.
12.
SAME-COMBINATION RATES.
188 ' On
88 FEDERAL REI'()RTER.
ItSelf. Oase cited: Interstate Oommerce Oommlsslon v. Alabama M. Ry. C. O;A. 51, 74
contrary, the testimony Is that eaeh Is reasonable 01'
1&
THE SECOND SECTION OF THE
, 'C, , ACT TO ,R'GUUATE COMMlllRCE. The second section deals ,with as between shippers, and not as between localities, anq It Is conceded to be wholly Inapplicable to tbls
", Get>. :4, Bell, Asst. Atty. (L. A. Shaver, of counsel), for com· plainant. ' " " Ed. Baxter and Payne & Tye, for, defendants. NEWMAN, District Judge. On the 16th day of October, 1891, L. N. Trammell, Allen Fort, and Virgil Powers, constituting the railroad commerce commission commission of Georgia, filed with' the , a petition setting up a violation on' the' part of the above,'named de· fendants ofsec,tion 4 of thEl act ,of congress, entitled act to regulate commerce" (24 Stat. 379).'I'be petition, after setting 'out that the defendants are common carriers engaged in transporting goods from Oincinnati, Ohio, to points in Georgia, llnd therefore subject to the act to regulate commerce, complains that the rates charged op freight ,,ob,ip. river points to Calhoun, Adairsville, from Oincinnatiand Kingston, 'Cartersville, Acworth, and Marietta, ,local stations on the line of the Western & Atlantic Railroad in Georgia, are greater than the rates to i\,tlanta, the eastern terminus of the Western &. point. It was allegJci that the trans.port8,tion to"Atla,llta R,pd to the local stations named,iwas UIlder substantially ,similar circumstances and. conditions. The petition further stated that Marietta is 20'mileswest 'of Atlanta and miles east of Chattanooga, that Acworth ls'35 miles. west of Atlarltaalld 103 miles eastof Chattanooga,tbat CartersvHleis 48 miles west of Atlanta and 90 miles east oLChattanooga, that Kingston is 59 miles west of Atlanta and 79 miles east of Chattanooga, that Adairsville is 69 roiles , west of AtIa,lltaand 69 milp.s el;lst of Cllattanooga, and that Calhoun is 78 of Atla,nt,a.a,lld, 60 miles east of Chattanooga; that the rateso£. freight charged, collected,. and received by the defendantsf,or freight transportation by continuous carriage from 1hl' city Of, Cincinnati and otberOhio river points to the towns and srationi'! named, were more,"and great,er oli each class than the amount charged and received for freightJo city of Atlanta, which is a greater distance frorotbe city 'Of OinClI)nati; that, therefore, the rates were unreasonable and discriminating in their nature; that they have called the attentio'll 'of the o.ffi'Ciats oftheWestern & Atlantic Railroad 90mpany to tlW fact, and thatth,ey have refused: and declined t(} change the same. The,prayerof the petition is as follows: "Whereupon.IJ:etijIoners.Jlp the state of Georgia, come and present the facfs as aforesaid,.,and appeal to the Interstate commerce commission for relief, and aver and charge that the aforesaid throngh rate of freight Into O(Gll0,rgia and to the. different towns and stations on the Western & Atlantic Railroad, so made, cbarged, and. cQllected by. tbe carriers, as ,aforesaId, Is unreasonable' and discriminating In Its nature, and Is In of sectIon 4 of the al:tof congress eutitled 'An act to regulilte commerce.' .. .
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INTERSTATE COMMERCE COMMTSSION V. WESTERN &: A. R. CO.
Answers were filed by the defendants, in which substantially they denied ,that the transportation to Atlanta and the other points named was under substantially similar circumstances and conditions, or that the rates were unjust and discriminating. After hearing the parties, the interstate commerce commission, on November 11, 1892, filed its report and opinion, and made an order in which it required the railroad companies to desist from the acts complained of in the petition of the Georgia railroad commission. On the 27th day of May, 1893, the interstate commerce commission filed its bill in this court, alleging that the defendant railroad companies had refused, and still refuse, to comply with the order so made by it, asking that said order be enforced, and that the defendant railroad companies be enjoined in with its decision and order. The particular act, therefore, which it is claimed constitutes a violation of section 4 of the act to regulate commerce, is the charging and receiving greater compensation in the aggregate for the transportation of a like kind of property from Cincinnati and other points, called and known as "Ohio river points," for a shorter distance to Calhoun, Adairsville, Kingston, Cartersville, Acworth, and Marietta, in the state of Georgia, than for a longer distance over the same line in the same direction to Atlanta, also in the state of Georgia; ,the shorter being included within the longer distance. The claim, of course, is, and the conclusion of the commission was, that freight carried from Cincinnati, etc., to Atlanta, is euried under substantially similar Gircumstances and conditions as freight carried to the shorter distance points named. And this violation of section 4 has been the only question. raised prior to this hearing, as shown by the record. If the circumstances and conditions at Atlanta aresubstantiall\' ,similar to those at Marietta and the other shorter distance points named, it is conceded to be a violation of section 4 of the act tD regulate CDmmerce; if the circumstances and CDnditiDns at Atlanta are substantially dissimilar, within the meaning Df the act, tD those at the shDrter distance points, thl'n it is cDnceded that the fDurth section is not violated. As bearing upon this question, and, indeed, as determining it, the question discussed in this case, as in several Dther cases, has been whethel' or not competition with other carriers subject to the act tD regulate commerce at longer distance points is sufficient to make the carriage to such points under dissimilar circumstances and conditions. The record in this case shows that the rates on first-clasB goods per lOG pounds, in 1892, and at present, are as follows: From Cincinnati t() Chattanooga, 76 cents; to Calhoun, $1.09; to Adairsville, $1.12; to to Cartersville, $1.18; to Acworth, $1.24; to Marietta, Kingston, $1.27; and to Atlanta, $1.07. The rate to the six local points named is made up of the through competitive rate to Chattanooga, Tenn., with the local rate authorized by the Georgia railroad commission frDm Chattanooga to the points named added. The plan of rate-making in Georgia to local noncompetitive stations is to add to the through competitive rate the local rl'j,te authorized by the Georgia railroad commission; and when made in this way the above rates are the result. After the case was at issue in this court, evidence was taken both for the commission and the railway companies. The evidence for the commission was that of merchants at the local stations on the
190
!. \
·
1
88 rEDERAL,
tended,to sh9'Y that they places of business. by to :l!;tthsse points by reason of the;,flUan:tarate. The evidfPnce for wail f9r the purpose .of !;lAOwing, and that the _ rate to is the result qfactive competition.; ",ate tp"tpl'!,local'statiQIlfil named & were in and of themselves; als.o ·that a ·lower rate: tOr il;b,e local stations would not materially affect the amQupt, goods carried to those stations,or the voillrileof business trani'ltlcted. The testimony ,is :of considerable length, and no attempt will to quote from. the evidence for either side except from wit1l;ess out of a number, as, to competition the Mr.J. M. Culp, the traffic manager of the Southern Railway, was a witness for the defendants, and the following extract is ,taken from hjs testimony, by questions and answers: a controlled by any, alld, If. so, to what, extent, ,.by competition. A.. They .nreentirel:r <;ontrolled by competition. They are controlled by competition the themselves, the railroads leading from the Ohio river themselves, .and controlled by' competition from the Eastern seliboard. The .adjustment otrlltes on certain cif the classes Is 'based, upon the same rates from Cincinnati to. Atlanta ali! ,from Baltimorll'to Atlanta.. Xb,ls Is not true -of ,<all claslSes,.,but It is true of,'anumberot classes. Q..State whether there is any such C9mpetition at' .Calhoun,Adalrsvllle, KingstOn, CarterSVille, A.cworth, and Marietta as :exists 'at Atlanta, Georgia. A,' There Is not the 'same competltlon. There Is competition existing up to Cbattanooga,-strong eompetltion;and the rates fixed by that competlti9n are used In making rates to these IOcaJ,:lltations. As Ihaye before testlij,ed,to .these COIllpetltlve rates up to are added the rates ,,:hlch lire the same the same distance as the rates 01' the Georgia co:tnmlsslon."" , . , . "i I
RaHroil9. ,. at
"Q. State whether the rates of freight from Qhio river points to Atlanta
While the testimony l'wmewhat,' the above is in line with the on the testimony of all the witnesses for the defendants who subject. The present ca.se was heaI,'d and decided by the interstate commerce commission in 1892. At that time there had been no authoritative !ietermination of the question as to whether or not competition at a Io;nger distance point would render the carriage of freight to such poin,t dissimilar circu,mstances and conditions fromtbose,eDsting at a shorter distance point within the meaning of the .fourtll.!;lection of the act to reg'1fate commerce: Since that time several cases have been before the court, and the question thoroughly discussed. It appea'rs to be !lOW finally settled by the decision the suprem(l cOTlrt in the case of Commerce Commission v· .A.lllbama M. Ry. Co., 168U. S. 144,18 Sup. Ct. 45; In that case the substance the decision by tbe court may be gathered from a headnote as follows:, .. "Competition Is one of the most and etl'ectlveclreumstances that the under wq.i,sh a long and short haul)1\ stantJally dlssIIl;l\lar, and as must, hllve. In tb;econtemplatlon of congress In the passage of the llCt to regUlate 'C\?lilmerce; This Is -no longer anopen'questlbn In this court...· ..
In
I _
Qf oJ li'reight & v. :Ry. ·Co., 7 Interl.{ Com.'(lt,i479, the i:q·
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