insisting upon and assuming to exercise the right to do the supposed illegal act, such person would be expected to defend it and present the reasons in its favor.

At present no one was making practical assertion of the right. It was obviously, therefore, a dictate of prudence as well as of propriety to decline to consider the question now. It will be more in accordance with sound principle to assume that if the conduct complained of was illegal, and the parties guilty of it have ceased to violate the law, and are now observing it, they will continue in their observance from this time on. See In re Order of Railway Conductors, 1 I. C. C. Rep. 8; In re Traders' & Travelers' Union, Ib. 8; In re Iowa Barbed Steel Wire Co. Ib. 17; In re St. Louis Millers' Association, Ib. 20; In re Disabled Soldiers & Sailors, Ib. 28; Bishop v. Duval, 3 Ib.

J. T. Brooks, for complainants.

On the same day there was called for hearing the case of The American Wire Nail Co. v. The Queen & Crescent Fast Freight Line, and others, in which unjust discrimination in rates on cut over wire nails was charged. In that case counsel stated that the only respondent which had actually made the discrimination had now so changed its rate sheets as to do away with it. It was further stated, however, that the discrimination resulted from the classification of the Southern Railway & Steamship Association, and they desired to have the Commission pass upon the question whether the classification, as it related to the traffic in question, was justifiable. The Commission replied that this would be improper, for the double reason that it was no longer claimed that the respondent who had made the obnoxious discrimination was persisting in it, and also that the classification which it is desired to assail only came in question in the case incidentally, and the parties who may be supposed interested to defend it have not been summoned for that purpose, and are not here.

E. J. Buffington, for complainant.
George Hoadly, Jr., for respondents.

JAMES & ABBOTT v. THE EAST TENNESSEE, VIRGINIA & GEORGIA RAILWAY COMPANY; THE NORFOLK & WESTERN RAILROAD COMPANY; THE SHENANDOAH VALLEY RAILROAD COMPANY; THE CUMBERLAND VALLEY RAILROAD COMPANY; THE PENNSYLVANIA RAILROAD COMPANY; THE NEW YORK, NEW HAVEN & HARTFORD RAILROAD COMPANY; AND THE NEW YORK & NEW ENGLAND RAILROAD COMPANY.

Complaint filed February 18, 1889.

April 19, 1839. Heard May 2, 1889.

Answers filed separately, the last,
Decided September 25, 1889.

1. GREATER CHARGE FOR A SHORTER DISTANCE. When combined competi tion by rail and water do not justify it. The presence of combined rail and water competition at a longer-distance point does not justify a greater charge for a shorter distance while the carrier maintains the shorter-distance rate where such competition is of greater force and more controlling than at the longer-distance point.

2. SAME.- Where freights have paid local rates. Nor does the fact that the freight is lumber which has paid a local rate over the roads of the defendants or of other railroad companies to the longer-distance point justify such greater charge for a shorter distance.

3. SAME.-Empty cars and return loads. Nor is such greater charge justified by the fact that the lumber business of the roads of a connecting line or any of them was done in cars which carried machinery to the longerdistance point when profitable return loads were not always to be had.

4. SAME.-Bulk and value of the freight. Nor does a difference in the bulk and value of lumber justify such greater charge when the carriers in their published rate sheets put the lumber in the same class and at the same rate.

5. REASONABLE RATES.-Distance as a measure of railroad service. Distance is not always the controlling element in determining what is a reasonable rate, but there is ordinarily no better measure of railroad service in carrying goods than the distance they are carried.

And where the rate of freight charges over one line, on similar freight carried from neighboring territory to the same market, is considerably greater than over other lines for distances as long or longer, such greater rate is held to be excessive and should be reduced.

A. B. Paine, for complainants.

William M. Baxter, for the East Tennessee, Virginia & Georgia Railway Co. and other defendants.

Enoch Totten, for the Pennsylvania R. R. Co.

REPORT AND OPINION OF THE COMMISSION.

MORRISON, Commissioner:

This is a complaint of the transportation charges on lumber carried from Johnson City, Tennessee, to Boston, Massachusetts.

The rate of which complaint is made is thirty-six cents per hundred pounds of lumber in the car-load for a distance of nine hundred and eleven miles, though from the more distant point of Atlanta, Georgia, twelve hundred and forty miles, a lower rate of thirty-four cents is charged, which is alleged to be in violation of the Fourth Section of the Act to regulate commerce. From Macon, Georgia, to Boston, the freight charge is the same as from Johnson City, four hundred and seventeen miles the shorter distance over the same line.

The complainants aver that said railroad companies form under joint traffic arrangements one connecting through line and in carrying lumber at these rates perform for others a much greater service for the same compensation and for others again a much greater service for less compensation than is exacted and received from the complainants as shippers from Johnson City. They further aver that the rate so exacted from them restricts and injures their business, that their reasonable request for its reduction has been refused and they are obliged in their trade to ship over said roads. They therefore complain and ask that the Johnson City rate may be so reduced as to bear a just relation to the rates charged from Macon and Atlanta, and that they may be granted such other relief as may be found on investigation to be reasonable.

The defendant Railroad Companies, answering separately, admit that the rates charged and the distances are the same as stated in the complaint, and aver that said rates are made by the East Tennessee, Virginia & Georgia Railway Company, the initial or sending company, and that as forwarders

the other companies are not responsible for the rates so made. Defendants deny that the rates on lumber carried over their roads are unjust or unreasonable, and aver that the reasons justifying the said rates of thirty-six cents and thirty-four cents per hundred pounds, respectively, from Macon and Atlanta, distant thirteen hundred and twenty-eight and twelve hundred and forty miles from Boston, as compared with the rate of thirty-six cents per hundred pounds for the shorter distance from Johnson City to Boston, are as follows:

"a. That the rates in the State of Georgia are fixed and controlled by the Railroad Commissioners of that State, that Commission fixing the charges for transportation to coast cities from mills in the State of Georgia."

"b.-The fact of water competition from Brunswick, Georgia, on the Atlantic ocean to Boston and other North Atlantic points; that, adding the rate from the mills to Brunswick, as fixed by the Railroad Commissioners of Georgia, to the rate given by the coast-line water carriers to Boston, the aggregate is less than the amount charged, as aforesaid, upon the tariffs of the respondents on their through railroad carriage from Macon and Atlanta to Boston."

"c.-A large amount of freight is received at Atlanta and Macon from eastern cities, including Boston, the cars containing which would have to return empty in large part, but for the fact that they can be returned loaded with lumber."

"d. The reason why the Atlanta charge is the same as that from Macon (the Atlanta charge is two cents lower) arises from the fact that lumber shipped from Atlanta is manufactured at mills a considerable distance from that city, and transported there over local roads before being marketed."

"e. That the lumber shipped from Johnson City is for the most part poplar lumber, while that which goes from Georgia territory is exclusively Georgia pine; and that the rate per hundred pounds per mile for hauling poplar, by reason of its greater bulk, should reasonably be greater than that for hauling pine."

probability would seem to be that the testimony of witnesses (taken at the railroad offices) would be as fully brought out by deposition as at the open sessions of the Commission, for counsel would know very well that nothing was to be gained by giving improper advice in any spirit of litigous antagonism, and that the very refusal to testify freely might constitute a valid ground for compulsory proceedings, such as in the present state of the case would be unwarranted.

But while the defendants are entitled to have, as they must receive, the protection that the law affords against oppressive and unwarranted orders, for what has not yet been shown to be the necessary production of their books and papers in these proceedings, it is only proper to state that the petitioner who is here challenging an investigation of their rates and methods, in the course of legal procedure, has rights under the law for the production of evidence, material and necessary, in relation to his complaints, if it exists in their books and records, which are entitled to equal protection and assertion. In obtaining such evidence, if it exists, he is not to be burdened with methods of procedure oppressively expensive to him, and which unnecessarily delay the investigation, for if his complaint should turn out to be warranted to any considerable extent, then all such unnecessary delays can not be otherwise than ruinously injurious to him and to others who refine and ship coal oil, as he does, in barrels; nor can the fact be overlooked that if his complaints are not well founded it is peculiarly within the power of defendants who are carriers to show it without any great or expensive delays about it. To any extent that they can fairly and justly save time, labor or expense to complainant, or to their companies, by giving to him, in response to any calls he may make, statements of facts shown by their books, records, or files, which may probably have importance on the hearing, the officers and agents of the respondents under the direction of respondents ought to give such statements, and ought to do so as promptly as may be found reasonably practicable. In other words, they ought to demonstrate a willingness to facilitate the investigation instead of assuming an attitude that may tend at every step to embarrass the proceedings.