THE facts, which involve the validity of an order of the Interstate Commerce Commission in regard to appellants' rates on lumber, are stated in the opinion.

Mr. Maxwell Evarts, with whom Mr. F. C. Dillard was on the brief, for appellants.

Mr. Wade H. Ellis and Mr. Luther M. Walter for the Interstate Commerce Commission, appellee:

The railroads complain of the order first because the Commission was without authority to fix any rates whatever; second, because the Commission did not establish the new rates because the low rate was unreasonable or because the new rates were reasonable, but simply because the railroads had promised and long maintained a lower rate; and because the rates established by the Commission are asserted by the railroads to be unreasonably low, unremunerative, and even below the cost of service.

Congress itself may fix interstate railroad rates. Gibbons v. Ogden, 9 Wheat. 1. It is expressly asserted in many cases. Wabash &c. R. R. Co. v. Illinois, 118 U. S. 557; Phila. S. S. Co. v. Pennsylvania, 122 U. S. 326; Northern Securities Case, 193 U. S. 197, 368.

Fixing of rates is a regulation of interstate commerce. Maximum Rate Cases, 167 U. S. 479; C., N. O. & T. P. v. Int. Comm. Comm., 162 U. S. 184, 197; Smyth v. Ames, 169 U. S. 466; Wabash R. R. Co. v. Illinois, 118 U. S. 557.

Congress may confer upon a commission power to ascertain what rate as a maximum will be just and reasonable and prescribe and enforce that rate. Missouri River Rate Cases, 218 U. S. 88; Int. Comm. Comm. v. C., R. I. & P. Ry. Co., 218 U. S. 88; Int. Comm. Comm. v. C., B. & Q. Ry. Co., 218 U. S. 113; Int. Comm. Comm. v. Stickney, 215 U. S. 98; Int. Comm. Comm. v. C., N. O. & T, P. Ry. Co., 167 U. S. 479, 494,

219 U. S.

Argument for Appellee.

The power thus exercised by the Commission does not constitute the usurpation of legislative or judicial functions, or unite in one body conflicting governmental authority, but consists merely in the ascertainment of facts upon which operates the general rule of Congress prescribing just and reasonable rates. St. L. &c. Ry. Co. v. Taylor, 210 U. S. 281; Railroad Commission Cases, 116 U. S. 307; Reagan v. Farmers' L. & T. Co., 154 U. S. 362; Field v. Clark, 143 U. S. 693; Buttfield v. Stranahan, 192 U. S. 470; Union Bridge Co. v. United States, 204 U. S. 364.

Penalties imposed by the Interstate Commerce Act do not amount to a deprivation of property because, first, no penalties are sought to be recovered in this case, and, second, the penalty provision is separable from the remainder of the statute. Commodities Clause Cases, 213 U. S. 366, 417.

The real gist of the railroads' complaint is that the Commission heard testimony as to the circumstances un'der which the old rate of $3.10 had been established and maintained and, after being once increased and again restored, was finally supplanted by the new $5 rate which the shippers made the subject of their appeal for relief.

The only point pressed by appellants is that the Commission gave a wrong reason for its action, but no expressions in the opinion of the Commission can be used to defeat its order if the order is otherwise lawful. So. Pac. Co. v. Int. Comm. Comm., 200 U. S. 536, 556, 557.

The Interstate Commerce Commission is not a court. It is not governed by technical rules of law with respect to the admission of evidence. Int. Comm. Comm. v. Baird, 194 U. S. 25, 44; § 13 of the Interstate Commerce Act as amended.

The chief function of the court, is to consider not the method by which the result was reached, but whether or not the rate prescribed is so low as to contravene the con

Argument for Appellee.

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stitutional provisions for the protection of property. San Diego Land Co. v. National City, 174 U. S. 739; Knoxville v. Water Co., 212 U. S. 1; Prentis v. Atl. Coast Line Co., 211 U. S. 210; Willcox v. Consolidated Gas Co., 212 U. S. 19. The Commission had a right, in determining the reasonableness of rates involved, to consider the effect of the advance by the railroads from $3.10 to $5 per ton upon the transportation of lumber.

The record in this case shows conclusively that the advance in rates made by the railroads in 1907 from $3.10 to $5 per ton for the transportation of the class of lumber involved, would, if permitted to stand, simply stop such transportation altogether.

It follows that the $5 rate, being absolutely prohibitive of any traffic, amounts to a withdrawal of transportation facilities. Atl. Coast Line R. R. Co. v. No. Car. Corp. Comm., 206 U. S. 1.

In determining what was a reasonable rate, the Commission was right in considering, as an item of evidence, the fact that the railroads had voluntarily established and long maintained a rate of $3.10 for the service. Frye v. Nor. Pac. Ry. Co., 13 I. C. C. Rep. 501, 507, 508; Holmes v. So. Ry. Co., 8 I. C. C. Rep. 561, 568; Stockyards v. Keith, 139 U. S. 128; Int. Comm. Comm. v. Chicago &c. R. R. Co., 186 U. S. 320.

The Commission heard testimony on the reasonableness of the rates and did not limit the basis of its order to the past conduct of the railroads, but, independently of any so-called estoppel, expressly found the $5 rate to be unreasonable and the rates prescribed to be reasonable.

The railroads having attacked the lawfulness of the rates prescribed by the Commission, the burden was upon them to show that the rates so fixed were below the cost of service or so unreasonably low as to amount to a confiscation of property. They introduced no testimony whatever, either before the Commission or the court be

low, which proves or tends to prove the allegation in their bill of complaint.

The real issue in this case is whether or not the rates fixed by the Commission are so low as to constitute a deprivation of property. Land Co. v. National City, 174 U. S. 739; Willcox v. Gas Co., 212 U. S. 19.

If the rate prescribed is not for a distinct and separable service and if it appears that notwithstanding such a rate the road is enabled to earn a fair return upon all its business, the rate so prescribed will not be condemned as a deprivation of property. Minn. & St. L. R. R. Co. v. Minnesota, 186 U. S. 257; Atl. Coast Line R. R. Co. v. No. Car. Corp. Comm., 206 U. S. 1; St. L. & S. F. R. R. Co. v. Gill, 156 U. S. 649.

MR. CHIEF JUSTICE WHITE delivered the opinion of the court.

Whether the court below was right in refusing to enjoin at the suit of the railway companies who are appellants the enforcement of an order of the Interstate Commerce Commission is the general subject for consideration on this record.

When that which is superfluous is put out of view, it will come to pass that every substantial controversy which the case presents will be disposed of by determining what was the character of the order made by the Commission; that is to say, what was the power which that body exerted in making the order in question. We state at once the pertinent facts.

The Willamette Valley, about 150 miles long, lies in the western part of the State of Oregon, south of the Columbia River, and through it there flows in a northerly direction the Willamette River, which empties into the Columbia River. Portland is on the Willamette River at or near where that river empties into the Columbia River. From

Opinion of the Court.

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Cornwallis, on the Willamette River, a point about 97 miles south of Portland, that is, about that distance from where the Willamette empties into the Columbia, the Willamette is navigable, and there is navigation from Portland to the sea by means of the Willamette and the Columbia Rivers. The rails of the Oregon and California Railroad from Portland pass through the Willamette Valley, paralleling the Willamette River at various distances, and extend to the Oregon and California state line, where that road connects with the Southern Pacific Company. The latter has for a number of years operated the Oregon and California as part of its system.

In November, 1907, a complaint was filed with the Interstate Commerce Commission on behalf of the Western Oregon Lumber Manufacturers' Association and others, concerning a rate of $5 per ton, in carload lots, on “green common rough fir lath and lumber and forest products" from Willamette Valley points to San Francisco and bay points, fixed in a tariff filed by the Southern Pacific Company with the Commission and which became operative in April, 1907. It was charged that the rate complained of was unreasonable in and of itself and discriminatory. It was averred that from about 1898 there had existed a rate of $3.10 for carrying the same character of lumber between the points named; that upon the faith of this rate and the belief that it would not be changed large amounts of capital had been invested in lumber mills in the Willamette Valley; that the people in that valley were dependent upon the lumber industry, and that such industry would be destroyed and the population be detrimentally affected if the new rate of $5 per ton was continued to be charged. It was alleged that the $3.10 rate was reasonable in and of itself, and that the rate had been increased without just cause upon the theory that the lumber interest in the Willamette Valley was prosperous, and that hence the traffic could stand the increase. The