problematical advantage which Brewer and Hanleiter, and perhaps other Griffin merchants, might secure, when compared with the stupendous disadvantage which might result to the city of Macon, and to one of its principal railroads, if the competition of carrier with carrier, and market with market, ever present there, should be ignored by the courts? Shall the authorities of Government have no concern for the millions of capital invested or accumulated through long years of enterprise and diligent business exertion by the people of the latter city? Shall the millions which they have invested in railroads . . . to afford to the state great systems of transportation, result in their ruin? Shall Government undertake the impossible but injurious task of making the commercial advantages of one place equal to those of another? It might as well attempt to equalize the intellectual powers of its people. . . .

...

GEORGIA RAILROAD COMMISSION CASES

Georgia Railroad Commission vs. Clyde Steamship Company et al.1 Same vs. Ocean Steamship Company, etc.

These cases are important, since in them the Commission adopted a peculiar interpretation of the statute, which made a great deal of trouble later. In re Louisville and Nashville R. R. Co. (1 I. C. C. Rep. 31), the Commission had held that in all cases of dissimilar circumstances within the meaning of the fourth section, the carriers themselves were justified in charging less for the greater distance, without permission from anybody. In overruling the doctrine which was set forth in this early case, the Commission now held as follows:

The carrier has the right to judge in the first instance whether it is justified in making the greater charge for the shorter distance, under the fourth section, in all cases where the circumstances and conditions arise wholly on its own line, or through

1 These constitute seven cases brought by the Georgia Railroad Commission, all involving similar points. All were heard together. Five were carried to the courts and decisions were rendered in three of them. 5 I. C. C. Rep. 324, Nov. 1892. 88 Fed. Rep. 186, June, 1893. 93 Fed. Rep. March, 1899. 181 U. S. 29, April, 1901.

competition for the same traffic with carriers not subject to the act. In all other cases under the fourth section, the circumstances and conditions are presumptively dissimilar, and carriers must not charge less for the longer distance, except upon the order of the Commission.

The Commission refused to examine into the merits of the case, but it gave the railroads twenty days, either to cease charging more for the shorter distance, or to file a petition with the Commission for relief from the operation of the fourth section. The railroads refused to accept this ruling, and the Commission appealed to the courts to enforce its order.

The courts held that the Commission by this order had been attempting to legislate in a most extraordinary manner. Though a purely administrative body, it had proposed to determine in advance what should be the presumptive evidence of guilt, and it had attempted to compel the railroads to go to it for permission to do a thing which is nowhere forbidden.

An effort was made by the Commission to get the Supreme Court to examine into the merits of the various complaints, and to render a decision in accordance with substantial justice between the parties, but the court emphatically refused to perform this duty, which it held should have been performed by the Commission in the first instance.1

THE CHATTANOOGA CASE

The Board of Trade of Chattanooga vs. East Tennessee, Virginia & Georgia Railroad Company.

In this case the Commission decided that the conditions of railway competition, and the competition of

1 In the Orange Routing Case (200 U. S. 356), the Supreme Court held that the courts might enforce an order of the Commission, even though the grounds upon which it was issued were insufficient, providing the order might be justified upon other grounds, not appearing in the findings of the Commission.

25 I. C. C. Rep. 546, Dec. 1892. 85 Fed. Rep. 107, Feb. 1898. 99 Fed. Rep. 52, Nov. 1899. 181 U. S. 1, April, 1901.

markets, might justify a greater charge to Chattanooga than to Nashville and Memphis, the more distant points. But as the railroad had not applied to the Commission for relief from the operation of the fourth section, an order was issued prohibiting the greater charge to Chattanooga. The enforcement of the order was suspended, so as to give the railroad an opportunity to apply for relief. The lower courts sustained the order of the Commission, in this case, but they were reversed by the Supreme Court. If dissimilar circumstances within the meaning of the fourth section existed at the more distant point, they justified the lower charge for the greater distance. If then such circumstances existed at Nashville, the greater charge to Chattanooga was lawful, and the railroad could not be required to go to the Commission for permission to do a lawful thing. In all such cases, therefore, the railroads are the initial judges as to the dissimilarity of the circumstances.

THE ST. CLOUD CASES

George Tileston Milling Co. vs. The Northern Pacific Railway Company.

The City of St. Cloud, Minnesota vs. Same.1

The rates on flour and upon other commodities from St. Cloud to Eastern points were higher than the rates from Minneapolis and other Minnesota points, which were more distantly situated. At the same time, the rates from Eastern points to St. Cloud were higher than those in force to Minneapolis.

In deciding this case, the Commission recognized the fact that the competition of carriers and of markets might justify a lower rate to Minneapolis, — and to other points near that city. But it held that in this particular instance, there was no justification for the higher rates to St. Cloud. The defendant carrier was the only one of the several

1 Two cases 8 I. C. C. Rep. 346, Jan. 1900. Order affirmed, but not reported.

competing roads which centred at Minneapolis which charged more to intermediate points. To the claim of the defendant that its route was more circuitous than those of the other carriers competing for the traffic of Minneapolis, the Commission replied that to allow it the sole privilege of charging more for the shorter distance would give it an unfair advantage over its competitors. If reductions in the rate from Minneapolis should subject it to no loss with respect to its local business, while all its competitors were obliged to make corresponding reductions in their local rates, it would be in a position to absorb the whole of the Minneapolis traffic. Since the other roads had voluntarily agreed to obey the law, they should not be put to any disadvantage upon that account.

THE SUMMERVILLE HAY CASE

H. W. Behlmer vs. The Memphis and Charleston Railroad Company.1

The rate on hay from Memphis, Tennessee, to Charleston, South Carollina, was 19 cents per 100 lbs., while the rate to Summerville, an intermediate point, was 28 cents. It was claimed that this was in violation of the long and short haul clause.

In deciding this question, the Commission recognized the fact that the competition of markets was the controlling force in determining the rate to Memphis, but it held that this sort of competition would not justify the higher charge to Summerville, without express permission from the Commission. Accordingly, it invited the railroad to apply for relief. This the railroad refused to do and the Commission appealed to the courts for a decree enforcing its order. Its decision was reversed by the Circuit Court, sustained by the Circuit Court of Appeals, and reversed again by the Supreme Court. It was held that the Com

14 I. C. C. Rep. 521, June, 1894. 71 Fed. Rep. 835, Jan. 1896. 83 Fed. Rep. 898, Nov. 1897. 175 U. S. 648, Jan. 1900.

mission could not legally require the railroads to apply to it for permission to charge more for the shorter distance, for they were justified in doing this without permission from anybody, wherever dissimilar circumstances prevailed at the more distant point.

THE PIEDMONT CASES

E. D. McClelen vs. Southern Pacific Railway et al.1 The complaint in these cases was that a higher rate was charged from Northern points to Piedmont than to Anniston, which was situated further south upon the defendant's line. It was urged that this constituted not only a violation of the fourth section of the Interstate Commerce Act, but also of the third section of that Act, since it gave rise to unreasonable prejudice against Piedmont as compared with Anniston. It was not contended that the rates to Piedmont were unreasonable per se.

The defendant railroads claimed that the practice was justified by the fact that the lower rate to Anniston had resulted from the competition of the Louisville and Nashville at that place. The Commission did not decide the case upon its merits, but issued a provisional order that the defendants should cease the practice, or apply to it for relief from the operation of the fourth section. The Circuit Court refused to sustain this order upon the same grounds as in the cases just cited.

1 Two cases, 6 I. C. C. Rep. 588, June, 1896. 105 Fed. Rep. 103, Nov. 1900.