a cent per mile per car, which is alleged to be a customary mileage paid by all railroad companies for the use of cars of other railroad companies and owners of cars; while the defendants refuse to pay this mileage, and also demand for the transportation of live stock in the Burton cars a charge additional to the tariff rate for carrying live stock in ordinnary cars, at the rate of 120 per cent. of said tariff rate on Burton cars thirty feet in length, increased three per cent. for each additional foot or fraction of a foot of length. The refusal to pay said mileage and said extra charge upon the live stock carried in the Burton cars are alleged to constitute unjust discrimination and extortion, forbidden by sections 1, 2, and 3 of the Act to Regulate Commerce.

There is no charge that the defendant companies or any of them refuse to receive and haul the complainant's cars, but the complaint is directed solely to the refusal to pay mileage and to the extra charge made shippers, as above stated.

The complaint concludes as follows:

"And said Burton Stock Car Company prays that it may be relieved from such unjust discrimination, and that said railroad companies may be enjoined and restrained from making any extortionate demands and charges, and that said railroad companies may be ordered to haul and operate the cars of the Burton Stock Car Company on the same terms and conditions as they operate their own and the cars of other railroads, individuals, and private companies, and that they may also be ordered to report and account to said Burton Stock Car Company for such mileage as has been earned in the past or may be earned in the future over the several lines referred to, by the cars of the said Burton Stock Car Company, and for such further relief as may be deemed just and proper by your honorable board."

The answer of the Chicago, Burlington and Quincy Railroad Company admits the payment of mileage, at the rate stated, to other roads and owners of cars for the use of their cars running on its lines, but says that the character of said cars and the conditions under which they are used are totally different from the cars of complainant and the condi

tions of their operations; so that the failure to pay a like mileage on the Burton cars is in no way a discrimination or an infraction of law. It sets forth the facts in detail which are alleged to constitute a difference in circumstances, and claims that the character of the Burton cars is such that they are not available for return freight and have to be hauled back empty, which fact is given as the reason for the additional charge made to shippers in those cars. And it says that all palace stock cars, similar to those of complainant, owned by it or other persons or corporations, are treated alike, no mileage being paid to any of them, and the same tariff being enforced; and asserts that the payment of mileage to complainant would be a discrimination against the owners of like cars.

The answer of the Chicago, Rock Island, and Pacific Railroad Company is similar, stating facts more fully as to its ownership of cars sufficient to perform all requirements of transportation of live stock, and the method of interchange of cars among railroad companies. It says that prior to April 5th last five cents per mile was charged for hauling the Burton and other improved stock cars when empty, and that the present charge of an increased percentage on the contents of the car was understood to be made at the desire of the complainant in place of the former charge for hauling back empty cars.

The answer of the Union Pacific Railroad Company, among other things, submits that it is not under any legal obligation, either at common law or by statute, to receive and transport over its road the trains, cars, and vehicles of private parties and corporations not operating railroads and not exchanging passenger, freight, or other cars as common carriers.

The answer of the Lake Shore and Michigan Southern Railroad Company, among other things, denies that it is under any obligation whatever to employ, receive, transport, or haul said petitioner's cars and pay said complainant compensation or mileage therefor; that it owes complainant no duty or obligation to use or employ its cars; that complainant is not a shipper of live stock, but merely the owner of

certain cars which it seeks to compel defendant to hire and use in place of suitable and proper cars which defendant now owns, and claims the right to select its own agencies, means, and equipment for transacting its own business.

The answer of the Cleveland, Columbus, Cincinnati and Indianapolis Railway Company also denies that it owes any duty to complainant or to any private corporation to receive or haul its cars in the absence of a special contract to do so; that it has the right to select cars as it pleases, and exclude all others for which similar advantages are claimed, and to make exclusive agreements to that end.

The other answers are similar in effect, and need not be noticed in detail.

The facts found by the Commission are as follows:

The complainant is one of several corporations which own cars fitted up especially for the transportation of live stock, and lease them to shippers for that purpose. There is an increasing public demand for cars of this character. The chief advantage claimed for such cars is in the fact that live stock can can be fed and watered while the train is moving, avoiding the evils attendant upon unloading at stock-yards for that purpose from time to time during the trip, which is required by the Revised Statutes of the United States, sections 4386-4390, in case of cattle carried in ordinary cattlecars. In complainant's cars the cattle also stand side by side, partially separated from each other while in transit. The Burton cars have been in use since 1883. Eighty-six are now running and one hundred more building. Some of the devices embraced in their construction are protected by patents which the complainant owns. The Burton cars are of various lengths, viz., 34, 36, 38, and 42 feet. They have been built as long as 46.6 and 51 feet, but no more of these lengths are now contemplated. Ordinary cattle-cars were formerly 28 and 30 feet long. There is a tendency of late to increase their length to 34 feet, in order to enable them to carry two lengths of 16-foot lumber, and many of them now are 30 feet and over. Some of the defendant companies own more than 5,000 cattle-cars each, all of the ordinary construction, as to which no substantial change has been made

during the last twenty years except in improved runninggear and adaptation for the carriage of other kinds of freight. The Burton cars carry 16 cattle each, and are equipped with a room in the center for a drover, with bunk, etc.; also a large receptacle underneath for carrying hay and grain. The ordinary cattle-cars carry from 19 to 23 cattle at a load, 20 or 21 being a fair average load. The Burton cars are somewhat heavier than the ordinary cars, but not materially heavier when loaded. They are well built and safe cars, and can be hauled in any orindary freight train. They are owned by complainant company, which rents them to shippers at the uniform rate of 2 cents per mile run. The shippers pay the railroad charges in addition.

Railroad companies exchange cars with each other. at a uniform rate of of a cent per mile run, paid upon the balance of mileage for or against each company, as adjusted periodically. Some railroad companies, about one hundred, as stated by complainant's treasurer, treat the cars of the Burton Stock Car Company in the same manner as the cars of other roads so far as the payment of of a cent per mile car service is concerned; these roads are chiefly in the East All of the defendant roads refuse to pay anything to complainant by way of car service. Prior to April 5th, 1887, most of the defendant roads charged five cents per mile for hauling special cattle cars when empty, and when loaded the ordinars rates to the shipper of the stock. All loaded cattle cars are charged for at the estimated average weight of the ordinary car load, so that 16 cattle in a Burtin car pay the same freight as 20 or 21 cattle in an ordinary car.

On April 5th, 1887, a revised classification was put in force by the Western Classification Committee, acting for an association of which all the defendants except the Lake Shore and Michigan Southern Railroad Company and the Cleveland, Columbus, Cincinnati, and Indianapolis Railroad Company are members, in which the following rule appears : "Live stock in car loads, carrier's risk, class 2.

"NOTE.-Live stock transported in special or palace livestock cars, not the property of railway companies, will be charged as follows: In cars not exceeding 30 feet in length,

internal measurement, 120 per cent. of tariff rates; for each additional foot or fraction thereof in excess of 30 feet in length, internal measurement, an additional charge of 3 per cent. per foot, or fraction thereof, will be made.

For example, live stock in a palace car 36 feet in length, internal measurement, will be charged 138 per cent. of tariff rate; live stock in a palace car 40 feet in length, internal measurement, will be charged 150 per cent of tariff rate. It being optional with any railway company to receive car exceeding 34 feet in length."

This rule is still in force. The Chicago and Alton Railroad Company did not accept the Western classification in this respect, but provided by a circular dated May 30, 1887, for a charge of 5 cents per mile on empty cars, and for ordinary tariff rates on cattle in special cars of 30 feet in length; over 30 and not exceeding 33 feet, 10 per cent, additional; and a further charge of 3 per cent. for each foot or fraction thereof, above 33 feet.

The extra charge to shippers in the Western classification, above quoted was intended to be in lieu of the former charge of 5 cents per mile for hauling back empty cars, and was adopted after a suggestion of one of the officials of complainant to the effect that the public objected to paying tariff rates and 5 cents additional mileage for the empty cars, and that it would be better to put it in the form of a percentage on the tariff. The Commission do not understand, however, that complainant thereby acceded to the justice of either charge, but merely that it preferred the one method to the other in case an additional charge was to be enforced.

The traffic in live stock upon the roads leading from the West to Kansas City, Chicago, and St. Louis is almost wholly East-bound, the West-bound shipments being chiefly of fine stock for breeding purposes. It is a matter of material importance to the railroads to be able to get return loads upon cattle cars going back from those cities to the West. The chief opportunities for back loading are found in lumber, steel rails, and ties. Lumber cannot conveniently be loaded. in the Burton cars. Steel rails, also, cannot be taken upon those cars, but are at times loaded in ordinary cattle cars