having elected to become a common carrier with respect to this dead freight, could refuse to be a common carrier subject to the Act in respect to carloads of live stock duly tendered it for transportation, are questions which we do not consider.

The motion of the Union Stock-Yards & Transit Company to be dismissed should be sustained.

This brings us to the real question, and it is important to observe exactly what that question is. It is not as to the reasonableness of the through rate as a whole, including this terminal charge, but merely as to the lawfulness of the terminal charge itself.

Ordinarily the whole rate is the only thing which is or can be considered and passed upon. The Commission has nothing to do with the division of that rate, that being a matter which is left entirely to the agreement of the carriers themselves. Here, however, the rate as a whole is not called in question, and there is no evidence in the case from which it can be found that the through rate from the points in question to Chicago is or is not a reasonable rate. It must be assumed that the rate, excluding this ter minal charge, is a fair one to both parties.

If the through rate were what was really aimed at by the complaint, then all ground of complaint has been removed since the complaint itself was filed. About October 1, 1896, rates on live stock from points embraced in the territory covered by this complaint to all western markets, including Chicago, were reduced 5 cents per 100 pounds. This would amount to from $10 to $15 per car. Therefore, the Texas shipper could actually deliver his stock in Chicago for from $8 to $13 per carload cheaper than he could before the $2 rate was imposed, and all the complaint asks for is the abolishment of that terminal charge.

This charge is imposed by the terminal carriers at Chicago and those carriers receive and retain the entire amount of that charge. The complaint is that this charge is an unlawful one, that no matter what the Chicago rate may be, the addition of this particular sum to that rate is in violation of the Act to Regulate Commerce.

It is suggested by at least one of the defendants that if not the through rate, but the terminal charge, is the matter in controversy, then the Commission has no jurisdiction over that subject,

since the service performed is a purely local one. This, however, is not so. Some of these defendants show by their testimony that they insist that it shall be stated in the bill of lading itself that delivery is to be made at the Union Stock-Yards, and they all agree that the understanding of the parties, when the shipment leaves its initial point, is that the stock must be and is to be delivered at the Union Stock-Yards in Chicago. The undertaking, therefore, is to transport this stock from the point of shipment to the Union Stock-Yards. The freight has not reached its destination until it reaches the Union Stock-Yards. Until so delivered it is interstate commerce, and subject to the Act to Regulate Commerce. If the carriers forming the through line elect to divide the entire rate and to designate a certain rate for the performance of a certain service, if they show in proof that a particular carrier is alone responsible for, and alone interested in that charge, then we may deal with that particular carrier and that particular charge irrespective of the other charges which make up the entire rate.

The single question is, therefore, Is this terminal charge of $2.00 imposed by the carriers whose lines enter the city of Chicago in violation of the Act to Regulate Commerce?

The complainants insist that it does violate the second section of that Act in that similar charges are not imposed at other livestock markets where the conditions are substantially the same. This claim involves a misconception of the second section. That section of our Act corresponds to what is known as "The Equality Clause" in the English Act. That clause which was enacted before the "Undue Preference Clause," corresponding to our third section, provided, in substance, that railways should exact the same compensation for the same service from all persons. The intent of our second section is to prevent discrimination between individuals. It prohibits the rendering of a given service to one person for a less compensation than is exacted from some other person for the same service under substantially similar circumstances and conditions. There can be no violation of that section unless the services are "like." And in order to be "like" within the meaning of that section they must be rendered at least over the same line. Assume, for instance, that some one of these defendants reaches both the city of Chicago and the city of

Omaha. Now, if that line should absorb this terminal charge in Chicago in the case of one shipper and should decline to absorb it in the case of another shipper from the same point, that would be a discrimination under the second section, but if this line absorbed the terminal at Omaha and did not absorb it at Chicago, that could not work a violation of the second section, for the service of transporting to Chicago and the service of transporting to Omaha is not a like service within the meaning of that section. The second section can, therefore, have no application to the facts in this case.

It is urged that this charge is a violation of the third section, for the reason that it unduly prefers other stock markets of the west as against Chicago, in that similar charges are not imposed at those markets. The different places referred to in the testimony are East St. Louis, Kansas City, Sioux City and Omaha, and it appears that at none of these places is such a charge made. The claim of the complainant seems to be two-fold. First: The rates from Texas points to these different markets have for many years differed from each other by certain differentials. It has during all that time cost the shipper a certain price to send a given carload to East St. Louis, and a certain amount more to send that same carload to Omaha or Chicago, respectively. Now, when this switching charge was imposed on the 1st day of June, 1894, it increased by exactly that much the cost of sending a carload of live stock from any particular point to Chicago without a corresponding increase to the other markets named. If the relation was right before, it became wrong by the imposition of this charge.

Second: Chicago is one of several western stock markets. At all these markets live stock is delivered and marketed in substantially the same way. It is the duty of the defendants in serving these different markets to treat all alike, and if they absorb a particular charge in one case, they must absorb that charge in every case. To impose a terminal charge at Chicago and no similar charge at these other markets is a preference in favor of the other markets to the disadvantage of Chicago.

It is certainly true that the addition of this terminal makes it so much more expensive for the shipper to deliver his live stock at the stock-yards in Chicago and that this additional expense

must to that extent work against Chicago as a cattle market. If a terminal charge is imposed at Chicago and not at these other markets that certainly is to the disadvantage of Chicago. If, therefore, the Interstate Commerce Act requires that any absolute differential shall be maintained between these different markets or that they shall be treated with absolute equality in the matter of terminal charges, and invests the Interstate Commerce Commission in the first instance, and the courts finally upon proceedings to enforce its order with authority to determine just what this differential shall be, and to enfore this equality of treatment, then the complainants are right in their proposition. If the defendants are under obligation to absorb terminal charges in every case if they do in any, their conduct in this instance is in violation of law. If they are under obligation to maintain an absolute differential between these different markets it is fair to assume, in the absence of evidence to the contrary, that the one which has for years been in existence is the proper one.

Such cannot, however, now be considered the law. The Interstate Commerce Act, as interpreted by the Supreme Court of the United States, imposes no such rule. That Act does not attempt to fix the rates which railway companies shall charge, nor does it in any way provide a tribunal which can establish those rates. The carriers are left entirely to their own discretion in the making of their rates, subject only to certain prohibitions contained in the law. So long as those prohibitions are not infringed every carrier is free to determine for itself what traffic it will engage in and foster, and at what points and in what manner, and to adjust its tariffs and connections accordingly. It cannot, in theory at least, impose an unreasonable rate, nor can it discriminate between different shippers in the amount of compensation which it exacts for a like service. It may give to one locality or one commodity a preference over some other locality or some other commodity, provided that preference be not undue or unreasonable. This is the import of the recent cases.

Interstate Commerce Commission v. Baltimore & O. R. Co. 43 Fed. Rep. 37, 3 Inters. Com. Rep. 192, 145 U. S. 263, 36 L. ed. 699, 4 Inters. Com. Rep. 92; Cincinnati, N. O. & T. P. R. Co. v. Interstate Commerce Commission, 162 U. S. 184, 40 L. ed. 935, 5 Inters. Com. Rep. 391; Texas & P. R. Co. v. Interstate Commerce Commission, 162 U. S. 197, 40 L. ed. 940, 5 Inters.

Com. Rep. 405; Interstate Commerce Commission v. Cincinnati, N. 0. & T. P. R. Co. 167 U. S. 479, 42 L. ed. 243; Interstate Commerce Commission v. Alabama Midland R. Co. 168 U. S. 144.

What constitutes an undue preference has not yet been defined by the courts. That seems to be a question of fact resting in the judgment of the trier. The preference must not be unnecessary. It must not bear too severely. It must not be unreasonable. Considering all the surroundings, and giving to the carrier that latitude which the court concedes it, does the adjustment of its tariffs work an undue and unreasonable preference and advantage? Regarding this question as one of fact, there are several elements to be taken into account.

1. The charge is a small one. As compared with the entire freight upon a carload of live stock from Texas to Chicago it is almost insignificant, being only a fraction of a cent per 100 pounds. It is not meant that a discrimination may not amount to an undue preference simply because it is small. Any preference, no matter how slight, may be undue if circumstances do not excuse it. Moreover, the unreasonable exaction complained of in cases of this kind is almost always slight in case of a single shipment. This charge, while but trifling as applied to a single carload, amounts in the aggregate to a very large sum annually. What we have in mind is, that the very enormity of the preference might in some cases render it an unreasonable one, although justifiable to some extent; and this is not that case.

2. This discrimination has not worked any appreciable disadvantage to Chicago as a market. An examination of the receipts of live stock in comparison with those of the other markets in question show in some instances since 1893 a relative gain and in some a relative loss. As is said in the findings of fact, this charge must of necessity be to the disadvantage of Chicago, but that disadvantage is not so serious that its effect can be observed. Now, a discrimination may undoubtedly be an undue one although its results cannot be directly traced; but it might easily happen that the very hardship actually resulting in a particular case would make it undue, and that can hardly be said here.

3. The conditions at the different markets are not the same, and an examination of those conditions, as far as they are revealed by this case, leaves it somewhat doubtful just how far there is any preference, due or undue, against Chicago.