Regulate Commerce," the obvious meaning of which is, that connecting lines are to be treated as continuous or through lines for the purposes of commerce States." among the several The answer of the defendant avers that "it is ready, and has been since the 5th of April, 1887, to instruct its agents to sell tickets over complainant's railway, and to afford the complainant equal facilities with other railway companies in this respect, provided the complainant will cease, as other companies have ceased (including the Chicago, Burlington and Quincy Railroad Company), to offer and to pay commissions, bribes, or gratuities to respondent's agents for the sale of tickets." The defendant here virtually admits its refusal to sell tickels over complainant's line to be a refusal of equal facilities, and has admitted it by conceding it to others. It should not, therefore, be allowed to deny the same equal facilities to complainant. But, waiving the question whether, under the above clause of section 3 of said act, it is the duty of carriers subject to the provisions of said act, to furnish to the traveller who demands and is ready to pay for it a through ticket as a "reasonable facility," yet it can hardly be questioned that if the carriers of the country choose to do so as to one connecting line, must do so as to others. A common carrier may not make discriminations whereby it will afford A a facility if he will take the Chicago, Burlington and Quincy, and deny it to B because he will take the Chicago and Alton road. And this is precisely what the defendant insists it may lawfully do. The defendant rests the refusal to afford the same equal facilities to the complainant, and to those who travel over complainant's line, which defendant affords to the Chicago, Burlington and Quincy Company and those who travel over its line, on the refusal of complainant to discontinue payment or the offer of payment of commissions to the agents of other lines, including defendant's, which defendant condems as an objectionable and demoralizing practice, and which it characterizes as bribes disguised in the form of commissions. It already appears that the defendant, with other common CHICAGO AND ALTON R. R. CO. V. PENNSYLVANIA CO., ETC. 101 carriers, has long participated in this practice, which is yet very general. In the said Act, pooling, rebates, drawbacks, and all unjust discriminations are declared to be illegal. The paying or offering to pay commissions on the sale of tickets is not. In ten or more years of the Interstate Congressional contests, these commissions were not mentioned in any bill presented or report made to the House or Senate. But, independent of the legality, or any question of domestic policy as to payment of commissions between the companies whose roads make connecting lines, the public, or so much of the public as may desire to travel over complainant's line, is entitled to that reasonable and equal facility afforded to those who seek the competing line. It is no answer to the public desirous of using railways as a continuous line, that there are differences as to the rights of companies among themselves. And so the law is declared in the case of Hammans et al. v. Great Western R'y., 4 R'y & Can. Traf. Cases, 181. In any view of the case, it seems to me that the defendant must sell through tickets to those who want them over the Chicago and Alton road, as it does over the Chicago, Burlington and Quincy. And I dissent from the views of my associates with greater diffidence, for the reason that this question is presented both as a question of law and of railroad ethics or morals. I would not willingly delay any reform in railroad administration, nor hinder the defendant in any well-meant effort to reform itself, which is the measure of its present effort, for it only exacts from companies with connecting lines that they shall discontinue the offer of commissions to its own, while they offer them to the agents of all other companies. The payment of commissions may be subject to such abuses as to demand discontinuance, but until declared illegal, they should not be made to excuse common carriers from the performance of obligations to the public, to enforce which obligations was the object of the law creating this Commission. WILLIAM M. HOLBROOK AND OTHERS v. THE ST. PAUL, MINNEAPOLIS, AND MANITOBA RAILROAD COMPANY. July 14, 1887. No order can be made against a railroad company on a complaint which is not supported by evidence. If a railroad company avows a purpose to comply with the law, it must be assumed that it will do so, and is doing so, until there is evidence that the purpose is not lived up to. W. E. Smith, for complainant. MEMORANDUM. The petition in this case, which was filed April 18, 1887, avers that the complainants during the last fall and winter, for nearly two months, were denied cars by the defendant company; and fearing that the course of the defendant will be similar the coming fall, and thinking the present a proper time to bring the matter to the attention of the Commission, that the apprehended inconvenience may be avoided, the complainants apply to the Commission for some proper and adequate remedy. The reason given for the failure to supply cars to the complainants is stated to be, that the defendant has been engaged in constructing an extension of the road, and has used its rolling-stock for that purpose, thus making itself a preferred shipper. As the facts stated did not show any violation of the law occurring since the Act was passed under which the Commission is acting, but only a fear that there might be such a violation, the Commission might with entire propriety have advised the parties that they should wait until it was seen whether their fears of misconduct on the part of the defendant were to be realized; the Commission having no authority to anticipate violations of law, or to issue mandatory process based upon suppositions or fears that any such violations will take place. But as it was quite possible the fears which were asserted might not be wholly groundless, it was deemed proper to send to the defendant company a copy of the petition, that it might have opportunity for explana tion, and also for giving assurances as to the future if inclined to do so. This course having been taken, the defendant company answered, excusing its failure to furnish cars during the time. of which complaint of deficiency was made by the complainants, and averring that the company had now procured an additional quantity of cars, so that it was believed there would hereafter be no difficulty in handling its business promptly and without delay. A copy of this answer was served upon the complainants, and this day was assigned for a public hearing, if the parties or either of them desired to have one. The complainants have not appeared to-day, but have forwarded certain affidavits on which and upon the pleadings, and certain facts appearing by the report of the Railroad Commission of Dakota, they desire the case to be heard. The affidavits were taken ex parte, and the defendant company was not notified to appear for cross-examination when they were taken. They are not, therefore, legal evidence, and whatever they might show, we could not base a judgment upon them. We have looked into them, however, enough to satisfy ourselves that they do not show any violation of law committed since the Act to Regulate Commerce was passed. Nor does any such violation appear from anything else to which our attention is called. If, therefore, the complaint was sufficient in substance, it would stand without evidence of any overt acts of misconduct on the part of the defendant, which could support any judgment by the Commission, or any mandatory order. Under these circumstances we have no discretion but to dismiss the complaint. If the defendant was guilty of any wrong prior to April of the present year, we can not for such wrong call it to account, because it antedates our authority. If at this time the defendant avows a purpose to comply with the law, we must not only assume that it will do so, but we must act upon that assumption until we have evidence that the purpose is not lived up to. At this time we have no such evidence, and these proceedings will therefore here terminate. All concur. M. A. FULTON v. THE CHICAGO, ST. PAUL, MIN.. NEAPOLIS, AND OMAHA RAILROAD CO. F. D. HARDING v. THE SAME COMPANY. Called July 14, 1887.-Decided July 20, 1888.-No. 2. Where complaint is made of rates as excessive, the burden is upon complainant to make proof of the fact alleged, and if no proofs are put in by either party the complaint will be dismissed. This held in a case in which the rates were much higher than they had at one time been on the same line. FIRST CASE. Britton & Gray, for defendant. REPORT AND OPINION OF THE COMMISSION. BRAGG, Commissioner: The complaint in this proceeding was filed on the 26th day of April, 1887. It avers, in substance, that during February and March, 1887, the defendant carried a very large amount of freight from Chicago to St. Paul and Minneapolis at less than half the rates it charged at the time of the filing of this complaint. It further charges, that in 1886 the rate complainant paid on first-class freight from Chicago to Hudson was forty cents per hundred pounds, and that at the time the complaint was filed it was seventy-five cents per hundred pounds. It also avers, that in 1886 the net traffic earnings of the defendant at its then rates were sufficient during that year to pay interest on its bonds, dividends on preferred stock, and to leave remaining in its treasury a surplus. The complaint relates to the rates between Chicago and Hudson, a distance of three-hundred and eighty-two miles, but it also charges in general that the rates at intermediate stations between these points are exorbitant. No damages are claimed. To this complaint on the 16th day of May, 1887, the defendant filed an answer, which states, in substance, that the complaint shows on its face that the complainant has sustained no injury or damage. It further states that the rafes fixed for carrying freights from Chicago to Hudson and other |