any

that such state of affairs now exists. On the contrary the evidence shows a constant and rapidly increasing consumption of milk arising from the natural growth of the cities which constitute the market, and from the enlarged use of milk and its products which is stimulated by a steady and satisfactory supply; in order to meet this constantly growing demand the sources from which the product is drawn are necessarily continually extended; it seems that at first the immediate neighborhood of the cities sufficed to furnish all milk required; presently the lines of supply were gradually prolonged in various directions, until they ramified throughout the distant county of Orange, and now are extended beyond that county to more distant localities still; but it does not appear that the price is affected by any excess of delivery, or that any milk of Orange county producers remains unsold. Prudence would influence railroad managers to confine the collection of milk within the territory in which it can be most cheaply handled and to extend the milk system no further than the increasing growth of the demand should require. It does not appear but that this has been in fact the course which the business has taken; it is not shown that the addition of new territory at any time has operated to the prejudice of the old.

It is said by way of argument that there is an inherent injustice in' carrying the product of one locality at a less rate than that of another which lies nearer to the common market, because in that case the nearer shipper pays a part of the expense of transporting the freight of his rival a longer distance upon the same train. This result does not necessarily follow, however. In cases where the rate is sufficiently high to afford a reasonable profit upon each portion of the traffic by itself there are no losses upon the longer portion of the route to be made up by overcharges upon the remainder. Although the product of the most distant locality may yield a substantially less measure of profit than that of the nearer, nevertheless, the traffic which pays the least profit to the carrier may pay its own entire transportation expense, and perhaps a good deal more. In that event there is nothing in its transportation which is saddled upon other communities,

and the smaller profit which is made from the longest hand helps to support the facilities which the carrier is enabled t› maintain for the common benefit of the entire route covered. In the present case it will not be contended by complainants that the milk business from even the most distant stations i. done at any loss to the roads.

In considering a question of this kind the interests of the public as a whole should be kept in view. It will not do to look solely to the pecuniary advantage of the producers. The great body of consumers are equally entitled to be considered, although their pecuniary interests are individually less because their number is so much greater. Milk is one of the prime necessities of life, and its constant distribution and general use have become a marked feature of the modern civilization of our great cities. This has been made feasible by the intelligent employment of the unexampled facilities which railroads now afford. The public are entitled to have the most full and free access possible to all reasonable extent of producing ter.itory, and anything that might tend to embarrass the production of a sufficient quantity of milk to supply all demands, or to hinder the regular shipment to the dealers of an adequate daily quantity, would be an evil of great public consequence. The system of making a uniform freight rate upon all milk transported upon the same road to a common market is one of long standing. No one was heard to say that he remembered its origination. It has served the public well. It tends to promote consumption and to stimulate production. The method is peculiar, it is true, but the traffic is peculiar. It does not appear that the petitioners are pecuniarily damaged by the gradual extension of its opportunities to more distant points. The benefits to the farmers of those localities, as well as to the great army of consumers, are obvious. It is not apparent how any other method could be devised which would present results equally useful to the publie or more just to the complainants. To subdivide the freight rates according to distance, or even to introduce a system of shorter grouping of rates, would necessarily compel the adoption of a new system of receiving, delivering and accounting, would cause great

inconvenience to the carriers and the dealers, would impede the rapid and reliable management of the traffic, would restrict the extension of territory required for future public demands, and apparently would not benefit the Orange county farmers in the slightest degree. Until some actual injury to them arises the Commission does not feel justified in holding that the grouping of the milk rate upon the route carried daily by a separate milk train, operated as a unit, works undue or unreasonable prejudice to the complainants; and it is, moreover, impressed with the belief that the present system is, upon the whole, the best that can be devised for the general good of all concerned in the traffic.

It is proper to add that the milk business referred to, from its nature, is confined to the neighborhood of large cities, and that milk rates are not usually interstate rates. It would be a misfortune to have different principles adopted in the method of handling the traffic upon lines which supply the same market; and the Commission is supported in reaching the result above stated by the fact that the grouping of milk rates by charging the same sum upon all milk carried to the same market has been recently considered and approved by two able State Commissions.

In this connection the manner in which the subject of grouped rates has been treated by the English tribunals and by Parliament is of interest. The Railway and Canal Traffic Act of 1854 contains a provision in very similar terms to the section of the Act to regulate commerce which is here in question. It reads as follows:

"No such company shall make or give any undue or unreasonable preference or advantage to or in favor of any particular person or company, or any particular description of traffic in any respect whatsoever, nor shall any such company subject any particular person or company or any particular description of traffic to any undue or unreasonable prejudice. or disadvantage in any respect whatsoever."

Under this section various decisions concerning the group

ing of rates were made, at first exhibiting an apparent tendency toward the position that undue and unreasonable prejudice is an ordinary consequence of the grouping system. An application in the Court of Appeals involving a review of a decision of the Railway Commissioners upon the subject was, however, dismissed, the Lord Chancellor (Lord Selborne) using the following language:

"It is admitted that if preference is constituted by the railway company carrying for certain colliery proprietors on more favorable terms than for others, prima facie that fact was proved, because beyond question they did carry upon the same terms as to charge for the collieries for which they performed more than the same service. They gave a decided, distinct, and great advantage, as it appears to me, to the distant collieries. That may be due or undue, reasonable or unreasonable, but under those circumstances is not the reasonableness a question of fact? Is it not a question of fact and not of law whether such a preference is due or undue? Unless you could point to some other law which defines what shall be held to be reasonable or unreasonable, it must be and is a mere question not of law but of fact.”

Denaby Maia Colliery Co. v. Muster, Sheld and Lincolnshire By C., 3 R'y & Can. Traffic Cases, 426, 411; 4 ib, 23, 2, 437.

The effect, therefore, of the final decision in the Denaby e ise was to adj idge that the Court of Appeals, having jurisdiction of questions of law alone, could not revise the decision of the Commissioners, who had found, upon the facts shown them, that the preference in question was undue and unreason, ahje,

In a more recent case before the Commissioners the basis of the earlier decisions was cleuly stated by the following language used in distinguishing them from a pending case :

But they have not shown (a fact which was found in the Denaby eise) that their output is at all in excess of the de

mand for their coal, or that a single ton of coal is left on their hands because they cannot at existing rates find a market for it."

Broughton and Plas Power Coal Co., Limited, and Others v. The Great Western R'y Co., 4 R'y and Can. Traffic Cases, 203, (1883).

A still later decision re-affirms the proposition that applicants claiming undue preference "must show that they are damaged by the undue preference complained of.”

Skinninggrove Iron Co. v. Northeastern R'y Co., 5 ib. 244,

(1887).

The result reached in the present case is believed to be in entire harmony with the construction given to the same statutory provision by the English tribunals.

There appears, however, to be a substantial difference in the expense when milk is brought from points beyond the end of the route of the regular milk trains upon the New York, Lake Erie and Western and the New York, Ontario and Western roads. Two refrigerator cars are hauled every day from Summit and Deposit to Port Jervis upon an ordinary mixed train, the expense of which is separable from and additional to the expense of the milk train proper. The daily run of the milk train is 87 miles, while these cars are taken nearly 100 miles further. It requires four cars to perform this service, for a round trip to Jersey City and back cannot be made within twenty-four hours, as the trains are run. The manner in which milk is collected upon the New York, Ontario and Western at points beyond Sidney was not explained in the proofs, but similar conditions probably exist. A charge for such service somewhat higher than the charge made upon the route of the daily regular milk train proper would seem to be just, and perhaps to be necessary, in order to fairly equalize the proportionate privileges afforded, in view of the material increase of cost required to send cars out to points beyond the terminus of the daily