number filed and the interminable changes made in the rate sheets render such personal inspection and examination by the Commission as would enable it to determine their legality at the time of filing impracticable. Besides, such ex parte inspection and examination by the Commission would neither conclude the carriers as to the reasonableness of their rates nor the public from challenging them. The legality of a scaleof charges, as in the case under consideration, may, and frequently does, depend on facts not appearing in the schedule and requiring investigation to determine, and the question of illegality may be raised by complaint made, or at the instance of the Commission. Charges to be lawful are required to be reasonable and just and no omission to express disapproval, nor any failure to challenge them anywhere can make rates lawful, which are unreasonable and unjust.

The defendants have failed to establish the existence of dissimilar circumstances which justify the greater charge for the shorter distance to San Bernardino, than for the longer distance to Los Angeles, from Kansas City, St. Louis, Chicago, Detroit, Cincinnati, New York and corresponding points on commodities mentioned in the complaint. Such greater charge is therefore unlawful and an order will issue requiring its discontinuance from and after September 1, 1890.

IN THE MATTER OF ALLEGED EXCESSIVE FREIGHT RATES AND CHARGES ON FOOD PRODUCTS.

Filed July 19, 1890.

1. The Act to Regulate Commerce makes it the duty of the Interstate Commerce Commission to execute and enforce the provisions of the Act which requires rates and charges to be reasonable. In the performance of this duty the Commission has authority to inquire into the management of the business of common carriers and to require the attendance and testimony of witnesses, the production of books and papers, tariffs and contracts relating to any matter under investigation. To enforce its authority in this respect the Commission must invoke the aid of a court of the United States.

2. When applied to by petition the Commission must investigate matters complained of, and must, to enforce the Act, make investigations and prosecute inquiries instituted on its own motion. On making any investigation, the Commission is required to make a report in writing of its recommendations, conclusions and the findings of fact on which its conclusions are based, which recommendations and conclusions, if not complied with, can only be enforced through the courts after trial, in accordance with established procedure. In such trial the facts found by the Commission, in conformity with the statute, have legal effect and are prima facie evidence; but the recommendations, conclusions and orders of the Commission are of no binding force in the courts.

3. The Commission having entered upon inquiry and investigation as to the reasonableness of transportation rates on food products and given notice of the time and place of taking testimony and afforded opportunity for calling and cross-examination of witnesses: Held, That such proceeding was a substantial compliance with the statute.

OPINION ON PROTEST AND MOTIONS TO DISMISS.

BY THE COMMISSION:

The Commission having on June 7th, 1890, made its investigation, forwarded to the United States Senate a copy of the report of its conclusions and recommendations, with the findings on which such conclusions are based, in which report the Commission said:

The evils complained of are alleged excessive freight rates, and the remedy to be applied is the reduction of such as are unreasonable. Both

have been considered in this opinion and report. The purpose of an investigation of the complaint that farmers cannot obtain cost for food products is to the end that excessive rates might be corrected. This correction will be made so far as reasonably may be done as the result of this investigation by an order of the Commission in conformity with its determination herein set forth."

On the 11th day of June, 1890, the Chairman of the Executive Board of the Interstate Railway Association, for said Association and the companies composing it, made protest against such proposed correction and reduction of rates and in support of such protest submitted a statement ending as follows:

"In view of the unexpected form which this investigation has taken, an opportunity for an examination of the evidence and a discussion of the facts pesented is asked for and the request is made that the final issuing of the report be withheld until such proceedings can be taken. "Respectfully submitted,

(Signed)

ALDACE F. WALKER,

Chairman, Executive Board,

Interstate Commerce Railway Association."

To give opportunity for examination of testimony and evidence and for argument, the Commission on June 16th, 1890, issued the following notice :

"INTERSTATE COMMERCE COMMISSION, OFFICE OF THE SECRETARY, WASHINGTON, June 16th, 1890.

"To

"A copy of the report of the Interstate Commerce Commission upon the investigation directed to be made by the United States Senate by resolution, set forth in said report, adopted February 19th, 1890, is herewith furnished to you.

"The Commission proposes to make an order based on the findings and conclusions of said report, and you will be given an opportunity to be heard and to present argument or reasons based upon the testimony taken why such order should not be made. Such testimony is on file with the Commission and can be examined by you.

"The Commission hereby appoints, the 8th day of July, 1890, at 10 o'clock A. M., as the time, and its office in Washington, D. C., as the place of hearing aforesaid.

(Signed)

EDW. A. MOSELEY, Secretary."

This notice with a copy of said report of the Commission was served upon the several carriers interested, including those composing said Interstate Commerce Railway Association. Like timely notice of such hearing was given to numerous Boards of Trade and other commercial organizations and to the Boards of Railway Commissioners of several States, including the States of Iowa, Nebraska, Kansas, and Missouri.

On the said 8th day of July, 1890, the said Aldace F. Walker appeared as attorney for the following Companies :

The Atchison, Topeka & Santa Fe Railroad Company; Burlington, Cedar Rapids & Northern Railway Company; Burlington and Missouri River Railroad in Nebraska; Chicago & Alton Railroad Company; Chicago, Burlington & Kansas City Railroad Company; Chicago, Burlington & Quincy Railroad Company; Chicago, Milwaukee & St. Paul Railway Company; Chicago & Northwestern Railway Company; Chicago, Rock Island & Pacific Railway Company; Chicago, St. Paul, Minneapolis & Omaha Railway Company; Fremont, Elkhorn & Missouri Valley Railroad Company; Hannibal & St. Joseph Railroad Company; Illinois Central Railroad Company; Iowa Central Railway Company; Kansas City, St. Joseph & Council Bluffs Railroad Company; Minneapolis & St. Louis Railway Company; Missouri Pacific Railway Company; St. Joseph & Grand Island Railroad Company; St. Louis, Keokuk & Northwestern Railway Company; St. Louis & San Francisco Railway Company; Sioux City and Pacific Railroad Company; Union Pacific Railway Company; Wabash Railroad Company

And on their behalf moved "to dismiss the pending proceedings for want of jurisdiction" and submitted a brief or printed argument in support of such motion.

In this list of companies that by counsel moved to "dismiss for want of jurisdiction" are the same companies that compose the Interstate Railway Association and that by the same counsel protested and asked opportunity for examination of the evidence and a discussion of the facts presented,

which opportunity was afforded. Counsel for the New York, Lake Erie & Western Railroad Company and for the Baltimore and Ohio Railroad Company make the like motion to dismiss for want of jurisdiction.

The avowed purpose of these applications, by protest and motions, is to prevent the issue of any order for a reduction of rates and charges based on the findings and report of the Commission, and they may be considered together.

The Interstate Commerce Commission is by the Act to regulate commerce "authorized and required to execute and enforce the provisions of this Act." In the performance of this duty the Commission cannot compel the attendance and testimony of witnesses, the production of books and papers, nor enforce any order it may make without invoking the aid of a court of the United States. The Commission not being a court, an attorney-at-law can have immunity from the legal penalties of contempt, and accuse it of misstating and perverting testimony.

The Commission can investigate, find facts, reach conclusions, and make orders on complaint made by others or upon inquiry instituted on its own motion. It can hear and determine, ascertain and declare the truth, but its findings, conclusions and orders can only be enforced through the decisions and judgments of the courts, made and rendered after trial in accordance with established judicial procedure. Such trial is new and one in which the court reaches its own conclusions and makes its own orders. In such trial the conclusions and orders of the Commission have no binding force. Its reported findings of fact alone have legal effect in the court. These are prima facie evidence and sufficient until in the opinion of the court overcome by other evidence, and the same course of judicial investigation in the courts is open to the carriers whether proceedings are or are not commenced and conducted in every particular in conformity with the statute.

That the findings of fact by the Commission may have validity as a basis for its conclusions and orders, or to be