from Chicago to Buffalo, is not supported by the evidence, and is apparently disproportionate and unreasonable.

The petitioners claim that the local charge from Port Huron to Buffalo should not exceed six and a half or seven cents per hundred pounds, and refer to tariffs that were in effect prior to the date of the Act to regulate commerce, in support of their contention. Rates made prior to that date, however, which were supposed not to be governed by legal constraints, and were often unduly preferential at particular points, are not a fair test for rates that must be maintained under the Act, with its restrictions against the greater charge for the shorter haul and against all unjust discriminations and undue preference and advantage to persons and localities.

When those rates were in effect a greater charge was made from Canadian points east of Port Huron to Buffalo than from Port Huron.

The respondent concedes that this is against the letter and the spirit of the Act to regulate commerce, and claims that it was justified in making some advance at Port Huron to bring rates on its line generally in conformity to the Act.

Advances induced by this consideration and made only to a just extent, at points where disproportionately low rates had existed, rest on a reasonable basis. So far as this rule. was observed by the respondent it furnished no just ground for complaint.

Upon the case as presented the Commission is not satisfied that an eight-cent rate on grain and grain products from Port Huron to Buffalo is unreasonable, nor is it satisfied that a higher rate than eight cents on grain and grain products is reasonable and just.

Grain and grain products are in the same class, and the rates on both are equal from Chicago to Port Huron. At Port Huron a distinction has been made in the rates, grain being two cents a hundred pounds lower than grain products. The only reason assigned for this difference is that there exists water competition in the carriage of grain from Port Huron and not to any great extent in the carriage of grain products. If the water competition were in fact controlling in respect to the rate it might justify the difference. But that

was not made to appear and similar competition by water exists from Chicago. Why it should be more effective from Port Huron than from Chicago was not shown.

The petitioners insist and ask a ruling by the Commission that it is unlawful to charge different rates on property in the same class. Prima facie, property classified alike would seem to be entitled to the same rate, but the point is one that need not now be determined. Upon the showing in the case the articles in question are embraced in the same class, and are carried at equal rates from Chicago, and no adequate reason having been shown for a difference at Port Huron it would seem that equal rates should prevail from the latter place.

It is not deemed necessary in this case to discuss the relation of the Port Huron rates to the Detroit and Toledo rates. That has been done in another case (Detroit Board of Trade v. Grand Trunk Railway, 2 I. C. C. R. 315), and the same principle has been considered in other cases. The rea

sons for not disturbing a rate not essentially unjust, that affects several lines of road and many interests in a large territory, that has been established to put competing localities on a substantial equality and to prevent rate wars, have been fully set forth in other cases and need not be repeated. If the Port Huron local rate were clearly unreasonable, and resulted in injustice to the business interests of that city, those considerations would be inoperative to prevent such action respecting them as might appear to be appropriate. But that is not the case. The evidence does not show that any material injury results to the business interests of Port Huron from an eight-cent rate to Buffalo. In fact, it appears affirmatively that the competition from Chicago with grain products from Port Huron is very slight and unimportant.

The decision of the Commission is that an eight-cent rate per hundred pounds upon grain and grain products from Port Huron to Buffalo, while a fifteen-cent through rate from Chicago to Buffalo is in effect, is not unreasonable, and that a rate from Port Huron to Buffalo in excess of eight cents per hundred pounds while such through rate from Chicago is maintained, is unreasonable.

THE OREGON SHORT LINE RAILWAY CO. v. THE NORTHERN PACIFIC RAILROAD CO.

Filed November 12, 1889.

Under the rules of practice issued by this Commission a replication to an answer is not required or allowed.

MEMORANDUM.

BY THE COMMISSION:

In this case after the answer to the complaint was filed, the complainant asked leave to file a replication. The Rules of Practice in this Commission not only do not provide for a replication to the answer, but in effect, though not in terms, exclude it. Rule IV provides for an answer, unless the respondent sets the case for hearing on the complaint under Rule V, which provides as follows: "If a carrier complained against shall deem-the complaint insufficient to show a breach of legal duty, it may, instead of filing an answer, serve on the complainant notice for a hearing of the case on complaint." But when an answer is filed the Rules contemplate that the issue is thereby joined. The language of Rule XI is this: "Upon issue being joined by the service of answer, the Commission will assign a time and place for hearing the same." And, again, in XII: "When a cause is at issue on petition and answer, each party may proceed at once to take depositions," &c. The omission to provide for a replication to the answer was not an oversight when the Rules of Practice were drafted and adopted. The view of the Commission then was to simplify the practice as much as practicable. Experience since has not developed any necessity for change in the respect under consideration. Both the letter and the spirit of the statute excludes the idea of technicality in its administration. The complaint and answer are sufficient to indicate the substantial controversy. Evidence is admitted with liberality to

develop all facts that bear on the issue thus made. Under the practice pursued in the hearing of causes the complainant would gain nothing by filing a replication, and would lose nothing by not filing it. The complainant has leave to withdraw his motion to file a replication.

!

WILLIAM L. RAWSON, PETITIONER, V. THE NEWPORT NEWS & MISSISSIPPI VALLEY COMPANY; THE BALTIMORE AND OHIO RAILROAD COMPANY, AND L. BOYER'S SONS, DEFENDANTS.

Argued and Submitted June 20, 1889.-Decided November 13th, 1889.

1. Where a tariff complained of was abandoned by the carriers for a long period of time before the complaint was made and shortly after the tariff was put in force, the Commission will not make an order requiring the carriers to cease and desist from enforcing such tariff, because such an order would be vain and useless.

2. The amendment of March 2, 1889, expressly provides that it shall have no application to pending proceedings, and as this proceeding was pending at the time, no reparation can be awarded, and the remedy of the petitioner is in the courts.

Garland & May, for petitioner.

W. D. Guthrie, for Newport News & Mississippi Valley Company.

H. L. Bond, Jr., for Baltimore & Ohio R. R. Company and L. Boyer's Sons.

REPORT AND OPINION OF THE INTERSTATE COMMERCE COMMISSION. BRAGG, Commissioner:

After the original complaint had been filed in this proceeding and answered by the defendant, the Newport News & Mississippi Valley Company, the petitioner by leave of the Commission was permitted to file an amendment complaint, in substance the same as the original, except that additional new parties were made.

The complaint alleges violations of the 3d and 6th sections of the Act to regulate commerce, and charges, in substance, the following facts:

For some years previous to and during the spring and early summer of 1887 there existed a tariff on the Chesapeake &