4. Preferences; when apparently fair rule held unreasonable and unfair. A rule apparently fair on its face and reasonable in its terms may, in fact, be unfair and unreasonable if it operates so as to give one an advantage of which another similarly situated cannot avail. Union Pacific R. R. v. Updike Grain Co., 215.

5. Preferences; unreasonable discrimination by carrier in compensating for elevation of grain.

In this case held, that the Union Pacific Railroad Company could not refuse to pay the owner of an elevator located on other railroads compensation for elevating grain similar to that paid to owners of elevators located on its own railroad on account of failure to return cars within an arbitrary and unreasonable time fixed by the Union Pacific; but also held that such cars should be returned within a reasonable time in order to entitle the parties rendering service to compensation therefor. Ib.

6. Rates; compensation contemplated by Interstate Commerce Act; power of Commission.

The Interstate Commerce Act does not attempt to equalize fortune, opportunities or abilities; it contemplates payment of reasonable compensation by carriers for services rendered, and instrumentalities furnished, by owners of property transported, the only power of the Commission being to determine the maximum of such compensation. Interstate Commerce Commission v. Diffenbaugh, 42.

7. Rates; compensation of shippers for elevation of grain; right of carrier to accord.

Interstate Commerce Commission v. Diffenbaugh, ante, p. 42, followed to effect that under the Interstate Commerce Law, as amended by the act of June 29, 1906, c. 3591, 34 Stat. 584, 590, elevation of grain is included in transportation, and, subject to the power of the Commission to determine the reasonableness of the payments, carriers can compensate owners of grain in transit for elevation services rendered in connection therewith. Union Pacific R. R. v. Updike Grain Co., 215.

8. Rates; compensation by carrier for services rendered in transportation; right of carrier to withhold.

Although a carrier may have had an ulterior motive in establishing a general rate of compensation for services rendered to it in connection with goods in transit, the real consideration is the service rendered; and even if the carrier does not realize the desired

benefit it cannot deprive one actually rendering the service of the compensation on the ground of non-compliance with regulations of an association of which the carrier is a member and over which the party rendering the service has no control. Ib.

9. Same.

A carrier must treat all alike. It cannot pay one shipper for services rendered to his goods in transit, and, by enforcing an arbitrary rule, deprive another shipper rendering similar services of compensation therefor. Ib.

10. Rates; reasonableness; proof of. Reasonableness of railroad rates cannot be proved by categorical answers like those given in regard to value of articles of merchandise; too many elements are involved which require consideration. Interstate Com. Comm. v. Union Pacific Ry. Co., 541.

11. Rates; reasonableness; quære as to presumption of.

Quare: Whether the maintenance of an admittedly low rate for a long time raises a presumption of reasonableness because the carriers realized a profit thereon. Ib.

12. Rate regulation; scope of authority conferred by Act to Regulate Com

merce.

By the Act to Regulate Commerce, Congress has provided a system for establishing, maintaining, and altering rate schedules and of redressing injuries, and committed to a single tribunal authority to investigate complaints, enforce conformity to prescribed standards, and order reparation to injured parties for non-conformity with those standards. Robinson v. Baltimore & Ohio R. R. Co., 506.

13. Rates; actions for reparation; when maintainable.

No action for reparation for exactions for railroad freight payments can be maintained in any court, Federal or state, in the absence of an appropriate finding and order of the Interstate Commerce Commission. The rule laid down in Texas & Pacific Railway Co. v. Abilene Oil Co., 204 U. S. 426, as to suits for recovery of unreasonable rates, applies also to suits for recovery of rates as discriminatory. Ib.

14. Rates; action for discriminatory exaction; when maintainable. In this case held that an action could not be maintained for discriminatory exaction on coal rates of fifty cents a ton when loaded

from wagons and not from tipples, as the complaint had not shown that the schedule had been the subject of complaint to the Interstate Commerce Commission and held by it to be discriminatory. Ib.

15. Sales by agent in State other than that of manufacture not interstate commerce transactions.

Where the relation of principal and agent exists between one selling goods in one State which are manufactured in another State and the manufacturer, sales made by the former within his own State are not interstate commerce transactions but are subject to the taxing power of the State. Banker Brothers Co. v. Pennsylvania, 210.

16. Same; effect of payment by purchaser of freight from place of manufacture. Where the transaction of sale of an article manufactured in another

State is wholly intrastate, as between vendor and vendee, it does not become interstate and immune from state taxation because the purchaser pays freight from the place of manufacture or because the purchaser obtains a warranty direct from the manufacturer. Ib.

17. State interference; when goods at rest and subject to state laws. In this case held, that goods manufactured in another State and delivered only, in pursuance of contract, after payment of draft attached to bill of lading, are at rest and subject to the laws of the State while in the hands of the consignee before delivery by him to a purchaser from him, notwithstanding the consignee only ordered them after a contract with the purchaser had been made. Ib.

18. State interference; when state statute superseded by Federal legislation. Southern Railway Co. v. Reid, ante, p. 424, followed to effect that

legislation of Congress in regard to matters of interstate commerce need not be inhibitive, but only to occupy the field, in order to supersede state statutes on the same subject. (Northern Pacific Ry. Co. v. Washington, ante, p. 370.) Southern Ry. Co. v. Reid & Beam, 444.

19. State interference; effect of act of Congress to supersede state legislation; validity of North Carolina law relative to carriers.

By the specific provisions of the act to regulate commerce, as amended, Congress has taken control of rate making and charging for in

terstate shipments, and in that respect such provisions supersede state statutes on the same subject; and so held that a statute of North Carolina requiring common carriers to transport freight as soon as received to interstate points under penalties for failure, conflicts with the requirement of § 2 of the Hepburn Act of July 29, 1906, c. 3591, 34 Stat. 584, forbidding transportation until rates had been fixed and published, and is therefore unenforceable. Southern Ry. Co. v. Reid, 424.

20. State interference; when middle ground of state authority passed. Any middle ground on which state authority might still be preserved after Congress has spoken in regard to interstate commerce is passed when the state regulation burdens such commerce, and the imposition of penalties for failure to receive and transport freight does impose a burden. Ib.

See CATTLE QUARANTINE ACT;

CONSTITUTIONAL LAW, 1,
2, 3;

JUDICIAL NOTICE;

SAFETY APPLIANCE ACTS;
STATES, 2, 3, 16, 17.

INTERSTATE COMMERCE COMMISSION.

1. Findings; conclusiveness of.

The Act to Regulate Commerce makes the findings of the Interstate Commerce Commission as to reasonableness of a rate prima facie correct. (Cincinnati &c. Ry. v. Interstate Commerce Commission, 206 U. S. 154.) Interstate Com. Comm. v. Union Pacific Ry. Co.,

541.

2. Findings; conclusiveness of.

Where, as in this case, there is testimony as to value of the roads,

amounts expended, dividends, ratio of earnings and expenses, and other matters, there is evidence to support the conclusions and the findings of the Commission on such facts are conclusive. Ib.

3. Orders; finality of.

Orders of the Interstate Commerce Commission are final unless beyond the power that the Commission can constitutionally exercise; beyond its statutory power, or based upon a mistake of law. Ib.

4. Orders may be set aside, when.

An order of the Commission, regular on its face, may be set aside if it appears that the rate is so low as to be confiscatory and in violation of the constitutional prohibition against taking property

without due process of law; or if the Commission acted so arbitrarily and unjustly as to fix rates contrary to evidence or without evidence to support its conclusions; or if the authority was exercised in an absolutely unreasonable manner. Ib.

5. Orders; validity of; power in fixing rates.

An order of the Interstate Commerce Commission is not to be considered by itself alone, but must be considered in the light of all the testimony, and when carriers themselves maintain a ratio of difference, a rate fixed by the Commission maintaining the same ratio of difference cannot be said to be beyond its power. Ib.

6. Orders fixing rates; considerations in determining validity. An order of the Interstate Commerce Commission within its power cannot be held invalid because it appears that possibly the Commission considered other subjects than the reasonableness of the rate; and in this case, held that an order fixing a rate on lumber was not invalid because the Commission examined into the effect of the rate on the lumber business and on the industries of the various points affected. Ib.

See APPEAL AND ERROR, 4;

INTERSTATE COMMERCE, 3, 6, 12, 13, 14;
PRACTICE AND PROCEDURE, 18.

JUDGMENTS AND DECREES.

1. Attacking decisions of Board of Land Commissioners of Hawaii; mode of. This court sustains the rule laid down by the Supreme Court of Hawaii that decisions of the Board of Land Commissioners of 1845 could not be attacked except by direct appeal to the Supreme Court of Hawaii as provided by law. Lewers & Cooke v. Atcherly, 285.

2. Reëxamination of decree sought to be executed.

Where one asks the aid of a court of chancery in executing a former decree, he takes the risk of opening such decree for reëxamination. (Lawrence Manufacturing Co. v. Janesville Cotton Mills, 138 U. S. 532.) Ib.

3. Scope of decree establishing will.

A decree establishing a will may determine who is entitled to testator's property without determining that a particular property belonged to the inheritance. Ib.

4. Stay order for rehearing and one for purposes of certiorari differentiated. There is a difference between a stay order for purposes of rehearing,