utterly ignored all considerations of this kind or which utterly failed to give due weight to such considerations was unjust and unreasonable. We further held that hatters' furs and fur scraps and cuttings as compared with articles taking first-class rates in the defendants' classification, including hats, the finished product for which these commodities constitute raw material, were unlawfully made double first class and could not lawfully be classed higher than first class in such classification. The Commission has repeatedly exercised the power to order a change in classification, but this has not been done in any case since the decision of the Supreme Court in the Maximum Rate Case (167 U. S., 479), holding that the Commission could not prescribe a rate for the future. The question was not suggested in argument in this case, but it had been raised in another case, and we had it in mind in disposing of this one.

The Commission said that the fixing of a classification determines the relation of rates, but not the rate itself. If we should transfer these two commodities from double first class to first class, we would not thereby determine the rate under which they should move in the future. The revenues of the carriers would not necessarily be diminished, since they might advance rates applicable to these classes. In Danville v. Southern Railway Company (8 I. C. C. Rep., 409) the right of determining the relation in rates which should exist between two localities was exercised, and the same principle must apply to the relation between two commodities. In that case it was said that the authority was not clear, but having exercised it then, and believing that a plain distinction exists between fixing a rate and determining a relation in rates, we said, in this classification case, that we should continue to do so until the Supreme Court of the United States held otherwise.

COURT DECISIONS.

LONG AND SHORT HAUL CASES.

The only court decisions rendered during the year upon orders issued by the Commission were in four long and short haul cases, two in the United States Supreme Court, one in the Fifth Circuit Court of Appeals and one in the Circuit Court for the northern district of Alabama. In three of these cases the opinions and orders of the Commission were filed and the suits to enforce the rulings therein made were begun in the circuit courts prior to the ruling of the Supreme Court in the Alabama Midland case (168 U. S., 164), which, as fully explained in former annual reports, was to the effect that the Commission had improperly construed the long and short haul section of the law. These three cases, therefore, as decided by the Commission, were open to the objection found by the Supreme Court in the Alabama Midland

case, and upon that general ground the courts, citing also the later decision of the Supreme Court in the Behlmer case (175 U. S., 676), refused to direct enforcement of the orders of the Commission in these proceedings.

One of the cases was entitled East Tennessee, Virginia & Georgia Railway Company v. Interstate Commerce Commission, commonly known as the Chattanooga Long and Short Haul case, which involved the legality of freight charges from New York and other Northeastern cities which were greater to Chattanooga, Tenn., than for the longer distance through Chattanooga to Nashville, Tenn. The decisions. of the Circuit Court and Circuit Court of Appeals in this case were in favor of the Commission, but the Supreme Court (181 U. S., 1) reversed the decree of the Court of Appeals, directed that the case be remanded to the circuit court with instructions to set aside its decree adjudging that the order of the Commission should be enforced and dismiss the application made for that purpose, but without prejudice to the right of the Commission to proceed upon the evidence already introduced before it, or upon such further pleadings and evidence as it may allow, to hear and determine the matter in controversy according to law.

The other decision of the Supreme Court above mentioned was rendered in three proceedings entitled Interstate Commerce Commission v. Clyde Steamship Company (two cases) and Interstate Commerce Commission v. Western and Atlantic Railroad Company, known as the Georgia Railroad Commission Long and Short Haul cases, which were argued as one case before that court. These cases involved greater charges for shorter than for longer hauls from Northeastern and Western points to destinations in Georgia.

The Supreme Court directed that dismissal of the appeal should be without prejudice to the right of the Commission, if it so elects, to make an original investigation of the questions contained in the records pertinent to the complaints which had been filed with it by the Georgia Commission. (181 U. S., 29.)

As the principles applied by the Supreme Court in these cases have been discussed in previous annual reports in connection with the Alabama Midland and Behlmer cases, it is unnecessary to restate or consider them at this time.

The third decision above referred to was rendered by the Circuit Court for the northern district of Alabama in two cases heard together, entitled Interstate Commerce Commission v. Southern Railway Company et al. and Interstate Commerce Commission v. Southern Railway Company. Charges from northeastern cities and from Chattanooga greater for the shorter distance to Piedmont, Ala., than for the longer distance through Piedmont to Anniston, Ala., were involved. The petitions were dismissed upon the authority of the decisions of the Supreme Court above stated. (105 Fed. Rep., 703.)

The fourth case, entitled Louisville & Nashville Railroad Company et al. v. Interstate Commerce Commission, known as the LaGrange long and short haul case, and relating to traffic from New Orleans to LaGrange, Ga., and through LaGrange to Atlanta, was dismissed by the Fifth Circuit Court of Appeals in a brief memorandum citing the decisions of the Supreme Court in the Chattanooga and Georgia commission cases. (108 Fed. Rep., 988.) The Court of Appeals apparently overlooked the fact that in this case the Commission, as was distinctly stated in its decision, had followed the ruling of the Supreme Court in the Alabama Midland case, and that the objectionable construction of the fourth section found by the Supreme Court in the Alabama Midland, Chattanooga and Georgia Commission cases, and which constituted the basis of the adverse decision by the Supreme Court, had not been applied by the Commission in this proceeding. This obvious error was brought to the attention of the Court of Appeals in a petition for reargument, which was denied by the Court, and the case has been appealed to the Supreme Court.

The discussion in former reports of court decisions involving construction of this long and short haul section has been amply sufficient to explain the ineffectiveness of that clause to accomplish the legislative intention. What was understood at the time the law was passed to amount to a prohibition of the discriminations and preferences resulting from higher charges for the shorter than for the longer distances, except in cases where special hardship might be shown, has turned out to mean that such higher short-haul rates are not forbidden unless upon complaint, hearing before the Commission, and subsequent trial in the courts they are held to be unjustified.

A number of cases in the Federal circuit courts and State courts, construing the act to regulate commerce or involving questions pertaining to the carriage of interstate commerce, have been decided and are briefly noticed below:

APPROVAL OF SCHEDULES BY INTERSTATE COMMERCE COMMISSION.

The decision of the Supreme Court of Tennessee in Atlanta, Knoxville & Northern Railway Company v. Horne (19 Am. & Eng. R. Cas., 509) seems to intimate an understanding that the publication of joint rates of connecting carriers, under the general order of the Commission directing publication of such rates, involves previous approval of such rates by the Commission. The sixth section of the act to regulate commerce provides that—

such joint rates, fares, and charges shall be made public by such common carriers when directed by said Commission, in so far as may, in the judgment of the Commission, be deemed practicable; and said Commission shall from time to time prescribe the measure of publicity which shall be given to such rates, fares, and charges, or to such part of them as it may deem practicable for such common carriers to publish, and the places in which they shall be published.

This provision in the law simply authorizes the Commission to require carriers to publish their joint rates, and by its general order of March 23, 1889 the Commission directed that all joint rates should be published in the same manner that individual rates are required by section 6 to be made public. The fact that such publication of joint rates has been ordered by the Commission does not imply that the rates have been approved by the Commission, and the law does not make the legality of those rates depend upon such approval in any way or authorize the Commission to pass upon joint rates in the first instance.

The question was passed upon by the Commission in the San Bernardino case. (4 I. C. C. Rep., 105.) Joint rates established by roads in the Transcontinental Association were the subject of complaint. The carriers claimed that the rates and rate adjustment were legal because the schedules had been filed with the Commission without its expression of disapproval. The Commission said:

Such claim has, and can have, no legal sanction. These schedules are filed with the Commission to secure publicity of rates and to furnish the Commission with evidence of all rates established, and the changes made therein, the better to enable it to enforce the provisions of the act to regulate commerce. No presumption arises as to the legality or illegality of the rates from the mere fact of filing the schedules, and rates which are illegal can not be legalized by any failure to challenge them. The immense 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 scale of 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.

In a negligence case entitled Mouton v. Louisville & Nashville Railroad Company (20 Am. & Eng. R. Cas., 673), decided by the Supreme Court of Alabama on appeal from the judgment of a county court, it was held that the court below had improperly allowed the statement of a witness that the classification and rates charged by the carrier had been approved by this Commission; and that if it was important to show the rulings and orders of this Commission, higher and better evidence the rulings themselves—should have been produced.

TARIFF RATES AND BILL OF LADING RATES.

In Atlanta, Knoxville & Northern Railroad Company v. Horne, above cited (Supreme Court of Tennessee), it was held that the rate named in a bill of lading is binding upon shipper and carrier unless the provision of the act to regulate commerce, requiring application

of the tariff rates, is applicable, and that in case of a rate over connecting lines such provision is not applicable, unless the rate has been published in accordance with the requirement of this Commission.

A decision of the Supreme Court of South Dakota, in Church v. Minneapolis & St. Louis Railway Company (21 Am. and Eng. R. Cas., 382), holds that where a shipper sues a railroad company to recover goods without first paying freight charges thereon according to the company's schedule published under the act to regulate commerce, the shipper claiming an agreement whereby the charges were to be less than the published schedule, there could be no recovery, such agreement or contract being unlawful as to both parties. The court said that the purpose of the interstate commerce act is to prohibit such discrimination as the shipper claimed, and that the trial court should have prevented him from asserting any right under such contract, even though its existence had been established by a fair preponderance of the evidence.

REFUSAL TO APPLY CARLOAD RATES TO CARLOAD SHIPMENTS BY COLLECTING OR FORWARDING AGENTS.

In Lundquist et al. v. Grand Trunk Western Ry. Co. et al., decided by the United States Circuit Court, northern district of Illinois, in July last, and not yet reported, it appeared that the plaintiffs were engaged as forwarding agents in soliciting less than carload lots of freight for shipment between Chicago and New York, and that by combining these small lots so as to make carload quantities they secured for themselves the difference between the carload and less than carload rates. Such difference in rates was large enough, the opinion states, to enable these forwarding agents to offer shippers controlling inducements to patronize them. The decision rendered upon plaintiffs' application for a preliminary injunction was that the defendants were not bound to allow carload rates upon carload quantities secured and offered for transportation in this manner. The carriers had in effect a rule that the carload rate on mixed carloads would apply only on freight from one shipper or owner and would not cover less than carload shipments of property from two or more shippers combined into carloads by forwarding agents claiming to act as shippers. This rule also stated that the term "forwarding agents" shall be construed to mean agents of the carriers and also agents of the actual shippers of the property, or any party interested in the combination of less than carload shipments of articles from several shippers into carloads at points of origin. The plaintiffs claimed that enforcement of this rule worked unjust discrimination against them in favor of other carload shippers in violation of the act to regulate commerce. The court said that under the common law the discrimination alleged in this case was permitted to common carriers, inasmuch as the latter were not under any obligation to