lations of the law, upon a hearing of the parties interested, and its opinion of the intent of the statute can then be announced with authority.

Any order or opinion in advance of a complaint and hearing would be misleading and unfair to those who might be affected by it, and would be unauthorized and nugatory. The Commission is therefore constrained to say that it has no power to comply with the request of the petition.

THE MISSOURI AND ILLINOIS RAILROAD TIE AND LUMBER CO. v. THE CAPE GIRARDEAU AND SOUTHWESTERN RAILWAY CO.

May 19 and June 9, 1887.

The fact that the owner of merchandise which is offered to a carrier for transportation from one point to another in the same State, intends to have it further transported by a second carrier into another State, does not make such first transportation interstate commerce, or render the carrier subject to the control of the Commission in respect to it, even though such first carrier may be informed of the ultimate destination of the merchandise.

Complaint of unjust discrimination.

The complainant is engaged in getting out ties along the line of the defendant's road, some of which it desires to transport over that road to Cape Girardeau, on the Mississippi river, where it has a contract for their delivery. The managing officers of the defendant are informed that the ties are to be taken by boat at Cape Girardeau across the river into Illinois, but such transportation across the river is entirely independent of the transportation requested of the defendant, and it will be by boats not in any respect under the control of the defendant, or forming a continuous line with it, or operated with it under any common arrangement.

The complaint made of the defendant is, that it fails to give the complainant cars for the transportation of its ties on request, though at the same time it gives cars to a rival dealer.

The road of the defendant is entirely within the State of Missouri.

When the complaint was presented the Commission called attention to the fact that the transportation asked for would be entirely within the State of Missouri, and, therefore, apparently not within the jurisdiction of the Commission. Complainant relied upon the fact as giving jurisdiction, that the ultimate destination of the ties was another State, and the defendant knew the fact; but as it appeared the defendant was to be in no way connected with any transportation out of the State; this was held to be unimportant, and the Commission declined to entertain the complaint.

IN THE

MATTER OF THE PETITION

OF THE

LOUISVILLE AND NASHVILLE RAILROAD CO.

April 5 and June 15, 1887.

When a railroad company claims that the circumstances and conditions of long and short hauls on its line are so dissimilar as to justify its making the greater charge on the shorter haul, the Commission will not on its petition decide upon the justice of its claim, but will leave it to take the initiative in fixing rates, and will decide upon their justice and propriety when complaint is made by persons or localities who consider themselves injured.

On questions of statutory construction involved in such cases the Commission holds:

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First. That the prohibition in the fourth section of the Act to Regulate Commerce against a greater charge for a shorter than for a longer distance over the same line in the same direction, the shorter being included in the longer distance, as qualified therein is limited to cases in which the circumstances and conditions are substantially similar. Second. That the phrase under substantially similar circumstances and conditions" in the fourth section, is used in the same sense as in the second section; and under the qualified form of the prohibition in the fourth section carriers are required to judge in the first instance with regard to the similarity or dissimilarity of the circumstances and conditions that forbid or permit a greater charge for a shorter distance. Third. That the judgment of carriers in respect to the circumstances and conditions is not final, but is subject to the authority of the Commission and of the courts, to decide whether error has been committed, or whether the statute has been violated. And in case of complaint for

violating the fourth section of the act the burden of proof is on the carrier to justify any departure from the general rule prescribed by the statute, by showing that the circumstances and conditions are substantially dissimilar.

Fourth. That the provisions of section one, requiring charges to be reasonable and just, and of section two, forbidding unjust discrimination, apply when exceptional charges are made under section four as they do in other cases.

Fifth. That the existence of actual competition which is of controlling force, in respect to traffic important in amount, may make out the dissimilar circumstances and conditions entitling the carrier to charge less for the longer than for the shorter haul over the same line in the same direction, the shorter being included in the longer, in the following cases: 1. When the competition is with carriers by water which are not subject to the provisions of the statute.

2. When the competition is with foreign or other railroads which are not subject to the provisions of the statute.

3. In rare and peculiar cases of competition between railroads which are subject to the statute, when a strict application of the general rule of the statute would be destructive of legitimate competition. Sixth. The Commission further decides that when a greater charge in tho aggregate is made for the transportation of passengers or the like kind of property for a shorter than for a longer distance over the same line in the same direction, the shorter being included in the longer distance, it is not sufficient justification therefor that the traffic which is subjected to such greater charge is way or iocal traffic, and that which is given the more favorable rates is not.

Nor is it sufficient justification for such greater charge that the short-haul traffic is more expensive to the carrier, unless when the circumstances are such as to make it exceptionally expensive, or the long-haul traffic exceptionally inexpensive, the difference being extraordinary and susceptible of definite proof.

Nor that the lesser charge on the longer haul has for its motive the encouragement of manufactures or some other branch of industry.

Nor that it is designed to build up business or trade centers.

Nor that the lesser charge on the longer haul is merely a continuation of the favorable rates under which trade centers or industrial establishments have been built up.

The fact that long haul traffic will only bear certain rates is no reason for carrying it for less than cost at the expense of other traffic.

Petition for relief under the fourth section of the Act to Regulate Commerce.

On April 5th, 1887, the Southern Railway and Steamship Association was composed of the following railroad companies, lines and systems, and steamship lines operated in connection therewith: Alabama Great Southern Railroad; At

lanta and West Point Railroad Company; Central Railroad of Georgia System; Cincinnati, New Orleans and Texas Pacific Railway Company; East Tennessee, Virginia and Georgia Railway Company; Georgia Railroad Company; Georgia Paeific Railway Company; Louisville and Nashville Railway Co.'s System; Nashville, Chattanooga and St. Louis Railway Company; Norfolk and Western Railroad Company; Port Royal and Augusta Railway Company; Richmond and Danville Railway Company; Rome Railroad Company; Savannah, Griffin and North Alabama Railroad Company; Seaboard and Roanoke Railroad Company; South Carolina Railway Company; South and North Alabama Railway Line; Western Railroad of Alabama ; Western and Atlantic Railroad Company; Atlantic Coast Line System; Baltimore, Chesapeake and Richmond Steamboat Company; Boston and Savannah Steamboat Company; Clyde Steam Lines; Merchants' and Miners' Transportation Company; New York and Charleston Steamship Company; Ocean Steamship Company; Old Dominion Steamship Company.

On the day mentioned the Association presented to the Commission on behalf of all the roads, systems and lines mentioned its petition that under the Act to Regulate Com-merce they be authorized to charge for the transportation of property less for longer than for shorter distances over tho same lines in the same directions between certain specified points. This petition being unimportant to a presentation of the legal questions, is not here recited.

The Louisville and Nashville Railroad Company also filed its separate petition as follows:

To the Honorable the Interstate Commerce Commission :

The petition of the Louisville and Nashville Railroad Company, a corporation chartered by the Commonwealth of Kentucky, would respectfully show unto your honorable Commission as follows, viz. :

The Louisville and Nashville Railroad Company was originally chartered to construct a railroad from Louisville, Ky., to Nashville, Tenn., with a branch to Lebanon, Ky., and one from a point five miles south of Bowling Green to the State

line near a point now known as Guthrie, in the direction of Clarksville and Memphis, Tenn. Construction was commenced from Louisville, southward, in 1853, and from Nashville, northward, in 1856, and work progressed from each end until connection was made at or near Bell's (Glasgow Junction), in the year 1859.

The Lebanon branch was extended from time to time and completed to Rockcastle river, a distance of 140 miles from Louisville, in 1870; and was farther extended to Jellico, Tenn., in 1883, there connecting with the Knoxville and Ohio Railroad.

The Memphis branch was completed in 1860.

The Memphis and Ohio Railroad Company was chartered to construct a Railroad from Memphis to Paris, Tenn. Construction was commenced in 1856, and gradually extended to Paris, to which point it was completed in 18—.

During the year 1860 or 1861 the Memphis, Clarksville and Louisville railroad, extending from the State line near Guthrie, Ky., to Paris, Tenn., was completed.

The Louisville and Nashville Railroad Company acquired by lease the property of the Memphis and Ohio Railroad Company in September, 1867, and it was afterwards consolidated into the Louisville and Nashville Railroad Company in October, 1872. The Louisville and Nashville Railroad Company acquired by purchase the property of the Memphis, Clarksville and Louisville Railroad Company on October 1st, 1871. The three railroads thus formed a continuous line from Louisville to Memphis.

On July 1st, 1872, the Louisville and Nashville Railroad Company acquired by lease control of the Nashville and Decatur Railroad, extending from Nashville, Tenn., to Decatur, Ala., 122 miles.

The South and North Alabama Railroad Company was chartered to construct a railroad from Mongomery, Ala., to Decatur, Ala. That company, unable to secure the means, failed to complete the road. In 1871 the Louisville and Nashville Railroad Company entered into an agreement to complete the road, and to receive in part compensation therefor a controlling interest in the stock of the South and North