carriers are undoubtedly entitled. I have elsewhere indicated my opinion to be in substance that the question coming before the courts can best be decided upon a field somewhat removed from the labyrinth of the details of tariff schedules and in more unobstructed view of the larger and more controlling facts of the

case.

I am aware that the commission on December 31st last, in announcing its opinion in the case of The Savannah Bureau of Freight and Transportation v. The Charleston & Savannah Railway Company, evidently disheartened by the adverse rulings of the supreme court in recent cases, more especially those of The Commission v. The Cincinnati, New Orleans & Texas Pacific Railway Company (167 U. S., 479), and The Commission v. The Alabama Midland Railway Company (168 U. S., 144), seems to give up section 4 as of no force or effect in any case where the conditions are not "substantially similar." After referring to its former holding that competition between carriers subject to the statute did not create such dissimilarity of conditions as would justify discrimination, the commission goes on to say:

"Since then, however, the supreme court of the United States, by its decision in the case, Interstate Commerce Commission v. The Alabama Midland Railway Company, decided November 8, 1897 (168 U. S., 144), has determined that this view of the law is erroneous, and that railway competition may create such dissimilar circumstances and conditions as exempt the carrier from an observance of the long and short haul provision.

“Under this interpretation of the law as applied to the facts found in this case, we are of the opinion that the charging of the higher rate to the intermediate points, as set forth, is not obnoxious to the fourth section. The section declares that the carrier shall not make the higher charge to the nearer point under 'substantially similar circumstances and conditions.' If the conditions and circumstances are not substantially similar, then the section does not apply, and the carrier is not bound to regard it in the making of its tariffs."

Now, I do not understand that such a conclusion follows from that decision; on the contrary, I suppose that when a violation of the long and short haul provision is charged, competition is one of the elements which enter into the determination whether the conditions are similar, and if dissimilarity is found, then the further question arises whether the dissimilarity is so great as to justify the discrimination which is complained of. The language of the act ought not to be tied up by such literal construction. If it were, then if it should be found that the dissimilarity of conditions is really in favor of the locality discriminated against, the provision would not apply-a result contrary to the manifest intent. In other words, my opinion is that the restraint of section 4 is to be applied upon the scale of comparison between the dissimilarity of conditions and the disparity of rates, and that it is competent under that section to restrain the exaction of the greater charge for the shorter haul—although there may be a substantial dissimilarity of conditions-provided the dissimilarity is not so great as to justify the discrimication made.

But the long and short haul clause is only one of the specific provisions employed for the general purpose of the act. The third section underlies the fourth, and supplies the principles on which it rests; so that, if the literal construction referred to be put upon the fourth section, the case would still be exposed to the third section, which forbids undue preference to one locality, or the subjection of another to any undue disadvantage.

With respect to the power of the court to deal with the order of the commission, counsel for the respondents refer to the opinion delivered by me in the case of The Commission v. The Detroit, Grand Haven & Milwaukee Railroad Company (57 Fed. Rep., 1005), that, having regard to the language of the sixteenth section of the commerce act in prescribing the duty of the court to enforce the order of the commission if it is found to be lawful, and the lack of any words conferring authority to enforce any order other than that, the court was not vested with power to enforce any other order, even though it might be of opinion that some other order would be more appropriate. And this, as is said, was the view of the court of appeals of this circuit in the same case on appeal. (43 U. S. App., 309; 74 Fed. Rep., 803.) Counsel for the commission contends that the supreme court, in the Alabama Midland railway case, expressed a different opinion, and that therefore the court is at liberty to mould the order of the commission to conform to the view which the court might think necessary "to do justice in the case." It seems somewhat doubtful whether the supreme court intended to pass upon this question, though possibly the language of the opinion may be susceptible of the construction contended for. Mr. Justice Shiras, in delivering the opinion of the court, said (168 U. S., —):

"It has been uniformly held by the several circuit courts and the circuit courts of appeal in such cases that they are not restricted to the evidence adduced before the commission, nor to a consideration merely of the power of the commission to make the particular order under question, but that additional evidence may be put in by either party, and that the duty of the court is to decide, as a court of equity, upon the entire body of evidence."

If the construction of this language contended for by counsel for the commission is correct, it must rest, I should presume, with deference, upon the ground that the provision requiring the court to make such determination upon the facts as shall be just should be read in connection with the provision requiring the court, if it finds the order lawful, to issue proper process for its enforcement, and that when so read the meaning is that the court shall enforce the order with such modifications as it shall deem just, though probably not an entirely new and different order. But it does not appear to me to be necessary to determine how this is. It is now settled that the commission has no power by its order to fix rates, "either maximum or minimum or absolute." So neither has the court. If, therefore, the court had power to vary the order, it would still be restricted to the making an order enjoining the continuance of an unlawful practice.

And this is the character of the order which the commission has made. The case is not one to which the second section is applicable. The inclination of my opinion is that the complaint made to the commission is sustained upon the first section of the act; but, as I am entirely satisfied that the practice complained of is in violation of the third and fourth sections, my judgment will proceed upon that ground. Although the reasons given by the commission do not in all respects correspond with the view here taken, my opinion is that upon the facts the order made is a just and reasonable one, and as near to my own sense of the justice of the case as any court could devise and is at liberty upon this record to make, construing the order, as I do, to require the respondents to desist from charging a higher rate to Chattanooga than is charged or shall be charged to Nashville. Some range of discretion is undoubtedly vested in the commission in respect to the mode in which the provisions of the act shall be enforced. And so, upon like reasons, the court has a similar equitable discretion when a case is

brought before it and the question is presented whether the order is a right one and fairly due upon the facts of the case. Tais is the plain inference from the language of the sixteenth section, which confides to the court in broad terms the power of determining what is just in the premises.

It is urged that the enforcement of this order will disturb the whole scheme of freight rates in a wide section. I am fully conscious of the responsibility I must assume in giving effect to the order, though my expectation is that the companies will find less difficulty in conforming to the order than their counsel seems to fear. But however that may be, the duty of the court to right the injustice encountered is plain. Surely it can not be contended that the rights of one community can be so entangled by a system of rates affecting many others also that justice can not be done when those rights are denied or withheld.

The prayer of the petition of the commission is granted, and an order for process in accordance therewith will be entered.

DIGEST OF DECISIONS OF INTERSTATE

COMMISSION.

COMMERCE

Edwin E. Montell v. Baltimore & Ohio Railroad company and John K. Cowen and Oscar G. Murray, receivers thereof; Southern Railway.company.

First.-On complaint of violation by defendants of sections 3 and 4 of the "Act to Regulate Commerce," through charges on coal in carloads from Cumberland, Md., which were greater for the shorter distance to North Garden, Va., than for the longer distance over the same line to Lynchburg, Va., it appeared at the hearing that defendants had withdrawn and discontinued the lower rate to the longer-distance point. Held, That such action by defendants obviated the infractions of the law so complained of.

Second -Defendants' aggregate charge for the transportation of coal in carloads from Cumberland, Md., to North Garden, Va., and their respective divisions thereof, found. excessive in comparison with rates charged by defendants and other carriers to various points; but the commission is not authorized to fix a reduced or lower rate of charges which carriers can be required to respect in the future, even if the ascertained facts warranted a finding as to the extent of the reduction which should be made.

Third. Although the "Act to Regulate Commerce" requires that transportation charges shall be reasonable and just, and complainant prayed in his petition that defendants be ordered to establish and maintain such rate on coal in carloads from Cumberland, Md., to North Garden, Va., as should be deemed just, reasonable and lawful, the act as recently interpreted by the courts makes no provision under which carriers can be ordered or required to establish or maintain any rate other than such rate of charges as any such carrier may fix and establish for itself.

Savannah Bureau of Freight and Transportation et al. v. Charleston & Savannah Railway Company et al.

Decided December 31, 1897.

First.-Wrongs caused by improperly adjusted rates over independent lines from competing cities to a common destination cannot be corrected without authority to prescribe both the maximum and the minimum rate, and the commission is not empowered to do either.

Second-The "Plant system" of railways carries fertilizer from Savannah, Ga., to Valdosta, and also over the longer distance from Charleston to Valdosta, at no higher rate than it charges from Savannah. The Charleston rate is fixed by the competition of another and more circuitous line from that city to Valdosta, and the Plant system must meet that rate or get no fertilizer business from Charleston. Held, That under such circumstances the Plant system may properly make the same rate from Charleston as is made by the longer line, and in so doing it does not unjustly discriminate against Savannah, though if the rate from Charleston to Valdosta were in any way subject to control, the conclusion might be otherwise.

Third. Water competition between Charleston and Savannah compels a rate of 80 cents per ton on fertilizer carried by rail between those cities. Rates from Savannah to points in Georgia are fixed by the Georgia railroad commission. Water competition exists also between Savannah and Charleston and Jacksonville, Fla. By that mode of carriage the rate from both cities to Jacksonville is the same, and consequently the same also to points reached by rail from Jacksonville, as against the all-rail lines to those points. Circumstances over which a defendant all-rail line to Montgomery and other points in Alabama has no control also affect fertilizer rates from Savannah and Charleston to such Alabama points in sɔme degree. Held, Upon all the facts, (1) That defendants' present differential of 50 cents more