XV.

Respondents are informed and believe that since July 20, 1891, the Cincinnati, New Orleans and Texas Pacific Railway Company continued to receive at Cincinnati, Ohio, for transportation, buggies and carriages in less than carloads, and other articles classified as first-class freight, consigned to Social Circle and other strictly local stations on the Georgia Railroad; that said Cincinnati, New Orleans and Texas Pacific Railway Company issues its own bills of lading at Cincinnati for such articles, and guarantees to shipper that the total rate from Cincinnati to said strictly local stations shall not exceed $1.07 per 100 pounds from Cincinnati to Atlanta, plus respondents' local rates, whatever they may be to such strictly local stations.

The through rate of $1.07 from Cincinnati to Atlanta is made by agreement and arrangement between said Cincinnati, New Orleans and Texas Pacific Railway Company and the defendant, now known as the Western and Atlantic Railroad Company; and it is not higher than the rate charged by other lines of transportation which compete with those lines for business between Cincinnati and Atlanta. The Georgia Railroad does not compete for business between Cincinnati and Atlanta, and therefore it is not consulted in regard to the through rates made between those points. It has no voice in making them, and does not participate in their division.

Respondent is bound by law to furnish copies of the local tariffs of the Georgia Railroad to anyone who may desire them, and the Cincinnati, New Orleans and Texas Pacific Railway Company, with one of those tariffs in its possession, can readily ascertain what are the local rates to any of the strictly local stations on the Georgia Railroad; and by adding such rates to $1.07 (the through rate from Cincinnati to Atlanta), it can easily see what will be the total rate from Cincinnati to each of said strictly local stations, and can safely guarantee a total rate accordingly.

Respondent can not possibly prevent the Cincinnati, New Orleans and Texas Pacie Railway Company, or any other railway company, from guaranteeing total rates, which are in part based upon the local rates of the Georgia Railroad; nor can respondents refuse to carry freight because others may have guaranteed total rates in regard to them. But respondents are no party to any such guaranties, and they charge their full local rates to all strictly local stations, without the least regard to any guaranties that others may or may not have made.

Respondents' local rates on buggies and carriages, in less than carloads, and on other first-class freight from Atlanta to Social Circle (a strictly local station) is 30 cents per 100 pounds, which, added to the through rate of $1.07 from Cincinnati to Atlanta, makes the total through and local rate $1.37 per 100 pounds from Cincinnati to Social Circle.

Respondents aver that the through rate of $1.07 per 100 pounds from Cincinnati to Atlanta is fixed by active competition between various transportation lines, and is reasonably low; the local rate of 30 cents per 100 pounds from Atlanta to Social Circle, is fixed by the Georgia Railroad Commission, and is reasonably low.

Respondent's connection with all such shipments begins for the first time at Atlanta and ends at Social Circle, both of which places are in the State of Georgia. In transporting such shipments from Atlanta to Social Circle, they remain all the time in the State of Georgia, and respondents, therefore, submit that in their connection with such shipments they are not subject to the act of Congress to regulate commerce.

XVI.

It is true that since July 20, 1891, the Cincinnati, New Orleans and Texas Pacific Railway Company has continued to receive at Cincinnati, for transportation, buggies and carriages in less than car loads, and other articles classified as first-class freight, consigned to Augusta, Ga.; that said Cincinnati, New Orleans and Texas Pacific Railway Company issues bills of lading at Cincinnati for such articles and guarantees to shippers that the through rate from Cincinnati to Augusta shall not exceed $1.07 per 100 pounds.

Said rate of $1.07 per 100 pounds from Cincinnati to Augusta is made by agreement and arrangement between said Cincinnati, New Orleans and Texas Pacific Railway Company, the defendant, known as the Western and Atlantic Railroad Company and respondents, operating the Georgia Railroad; and said rate is forced upon them by other transportation lines which can compete with them by carrying similar freights from Cincinnati to Augusta, and by other transportation lines which do compete by carrying similar freights to Augusta, from Baltimore, Md., and other Eastern cities.

At Baltimore and other Eastern cities there exist large manufactories of buggies, carriages, and other vehicles, which, with other articles classified as first-class freight, are carried from Baltimore and other Eastern cities at such rates that, if the Cincinnati, New Orleans and Texas Pacific Railway Company, the defendants, now known as the Western and Atlantic Railroad Company, and respondents operating the Georgia Railroad, were to charge more than $1.07 per 100 pounds from Cincinnati to Augusta, no freight of that character would be shipped from Cincinnati to Augusta over the Georgia Railroad; and Baltimore and other Eastern cities would drive Cincinnati and other Western cities out of the Augusta market.

Respondents aver that there are various transportation lines which compete for business between Baltimore and other Eastern cities on the one side and Augusta on the other side. Some of those lines are all rail, some of them are all water, and some of them are part water and part rail lines. The competition thus produced by those lines makes the rate to Augusta from Baltimore and other Eastern cities as low as it is; and the lines operating from Cincinnati and other Western cities through Georgia to Augusta are forced to meet or approximate the rate from Baltimore and other Eastern cities to Augusta or retire from all that kind of business.

Respondents are advised and insist that it was not the intention of the act to regulate commerce to destroy the commerce between Cincinnati and Augusta; nor to drive Cincinnati and other Western cities out of the Augusta market; nor to give to Baltimore and other Eastern cities a monopoly of that market; nor to deprive the Augusta market of the benefit of competition between Cincinnati and other Western cities on the one side and Baltimore and other Eastern cities on the other side. Respondents are further advised and insist that it was not the intention of said act to prevent the Cincinnati, New Orleans and Texas Pacific Railway Company, the defendant, known as the Western and Atlantic Railroad Company, and respondents operating the Geor gia Railroad, from forming a through line from Cincinnati to Augusta, nor from carrying through freights over that line upon such through rates as may be necessary to meet or approximate the rates to Augusta from Baltimore and other Eastern cities.

XVII.

Respondents admit that the distance from Cincinnati to Social Circle is shorter than the distance from Cincinnati to Augusta. They admit that freight carried from Cincinnati to Augusta is carried over the same lines and in the same direction as freight which is carried from Cincinnati to Social Circle. They admit that the aggregate or total of the through rate from Cincinnati to Atlanta, added to the local rate from Atlanta to Social Circle, is greater than the through rate from Cincinnati to Augusta. But respondents aver that freights carried from Cincinnati to Augusta are not carried under substantially similar circumstances and conditions as freight carried from Cincinnati to Social Circle. Social Circle is a strictly local station on the Georgia Railroad. No rival transportation lines reach that point, while at Augusta there exists the competition above referred to; and the fact that competition exists at one point and does not exist at another, creates not only a substantial but a controlling dissimilarity between the circumstances and conditions under which freight is carried to those points respectively.

XVIII.

In the division of the through rate of $1.07 per 100 pounds from Cincinnati to Augusta, respondents, operating the Georgia Railroad, receive only 28.4 cents per 100 pounds for transportation from Atlanta to Augusta. This is a low rate for the service rendered, but is all that respondents can get. Respondents carry at that rate at a slight profit, and it is to the benefit of the public, as well as of respondents, that respondents should be allowed to retain their source of revenue.

Respondents would much prefer to so increase the through rate from Cincinnati to Augusta that the proportion of it belonging to the Georgia Railroad would amount to 64 cents per 100 pounds, which is the local first-class rate allowed by the Georgia railroad commissioners between Atlanta and Augusta. But it is impossible to get the connections of the Georgia Railroad to allow it any such proportion of said through rate; nor could these connections afford to do so in justice to themselves, considering the relative mileage of the different roads forming the route.

The only way to increase the amount to be realized by the Georgia Railroad from said through rate is to increase said through rate itself, which is impossible so long as water competition exists at Augusta.

If respondents are forced to charge no higher local rates to the strictly local stations on the Georgia Railroad than the proportion which the Georgia Railroad gets of the through rates from Cincinnati and other Ohio River points to Augusta, respondents will be compelled either to retire from such through business or to reduce the local rates to every strictly local station east of Covington, which is east of and distant from Atlanta only 41 miles. To reduce the local rates to all strictly local stations east of Covington from the rates allowed by the Georgia railroad commission to the proportion which that railroad now gets from the through rates from Cincinnati and other Ohio River points to Augusta would reduce respondents' revenue annually not less than $50,000.

Respondents receive from the through business from Cincinnati and other Ohio River points to Augusta not less than $123,000 annually. It is therefore manifest that the Georgia Railroad would be forced to abandon the through business. The effect would be to drive Cincin

nati and other Western cities out of the Augusta market, and to deprive that market of the benefit of the competition now afforded by those cities.

Instead of the James & Mayer Buggy Company getting a rate from Cincinnati to Augusta of $1.07 per 100 pounds, as it now does, it would have to pay $1.71 per 100 pounds, while its Baltimore competitors, with their water lines of transportation, would have a rate of about 89 cents per 100 pounds.

Respondents do not believe that the act to regulate commerce was ever intended to destroy it; and such would be the effect as to the commerce involved in this case, if the alleged order of the Interstate Commerce Commission should be enforced by decree in this case.

Having fully answered, respondents pray to be hence dismissed with their reasonable costs.

STATE OF GEORGIA,

County of Richmond, ss:

ED. BAXTER,

Jos. B. CUMMING, Solicitors for Respondents.

Personally appeared before me, Irwin Alexander, clerk of the circuit court of the United States for the northeast division of the southern district of Georgia, Charles H. Phinizy, who is acting general manager of the Georgia Railroad, who, being duly sworn, deposed the respondents in the foregoing answer are the assignees of the original lessee of said railroad, and that the facts stated in the foregoing answer are true to the best of his knowledge, information, and belief.

C. H. PHINIZY. Sworn to and subscribed before me this 11th day of December, 1891. [SEAL.] IRWIN ALEXANDER,

Deputy Clerk U. S. Circuit Court, Northeast Division Southern District, Georgia.

IN THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF GEORGIA.

In equity.-No.

THE INTERSTATE COMMERCE COMMISSION vs. THE GEORGIA RAILroad Company.

To the circuit court of the United States, sitting in equity within and for the northern district of Georgia :

Your petitioner, The Interstate Commerce Commission, which was created and established and now exists under and by virtue of an act of Congress of the United States entitled "An act to regulate commerce," approved February 4, 1887, as amended by an act approved March 2, 1889, and as amended by an act approved February 10, 1891, humbly complaining showeth unto your honors that the Georgia Railroad Company is a corporation chartered and existing under and by virtue of the laws of the State of Georgia, having its principal office at Augusta, in the State of Georgia; and the said Georgia Railroad Company was, at the time of the committing of the grievances hereinafter spe

cially set forth, and still is, a common carrier engaged in the transporta tion of persons and property by its railroad and certain other railroads connecting therewith, extending through several of the United States, under a common control, management, or arrangement for continuous carriage or shipment; and particularly was the said Georgia Railroad Company, heretofore, to wit, on the 5th day of April, 1887, and ever since, engaged in such business from Cincinnati, in the State of Ohio, to Charleston, in the State of South Carolina, and from Philadelphia, in the State of Pennsylvania, to Atlanta, in the State of Georgia; and from divers others places without the State of Georgia to divers other places within the said State of Georgia; and as such carrier was, during all the time aforesaid and still is, subject to all the various provisions of said act entitled "An act to regulate commerce" and the said amendments thereto.

That the said defendant was, heretofore, to wit, on the 6th day of July, 1887, duly impleaded in a controversy not requiring a trial by jury, as provided by the seventh amendment of the Constitution of the United States, before the said Interstate Commerce Commission, upon the complaint of W. H. Heard, then and now a citizen of the United States and a resident of the city of Philadelphia, in the State of Pennsylvania, for an alleged violation on the part of the said defendant of the provisions of the said act entitled "An act to regulate commerce," as at large more fully appears by the said petition on file in the office of said Commission, a copy whereof is hereunto annexed and made a part of this petition, the same being marked Exhibit A.

That thereafterwards, to wit, on the 4th day of August, 1887, the said Georgia Railroad Company filed its demurrer, plea, and answer to the above mentioned petition of the said W. H. Heard, as at large more fully appears in and by said answer on file in the office of the said Commission, a copy whereof is hereunto annexed as part of this petition, the same being marked Exhibit B.

That thereafterwards, the said cause being at issue upon the pleadings aforesaid, duly came on for investigation and hearing before the said Interstate Commerce Commission, duly and legally assembled for that purpose, in the city of Washington, in the District of Columbia, on the 15th day of December, 1887, when the said complainant, the said W. H. Heard, as well as the said defendant, the Georgia Railroad Company, duly appeared by their respective officers and attorneys, and thereupon the said cause proceeded to hearing and determination.

That at the said hearing it was made to appear to the satisfaction of the said Commission that the said defendant had violated the provisions of the said act entitled "An act to regulate commerce," as it was stated to have been violated by it in the said petition hereinbefore referred to as a part hereof, and thereupon said Commission, upon the 15th day of February, 1888, duly and legally determined the matters and things in controversy and at issue between the said parties, and made a report in writing in respect thereto, which included the findings of fact upon which the conclusions of said Commission were based, as at large and more fully appears in and by the report of the determination of the said Commission in regard thereto, on file in the office of the said Commission, a copy whereof is hereunto annexed and made a part of this petition, the same being marked Exhibit C.

That thereafterwards and forthwith, to wit, on the said 15th day of February, 1888, upon the determination of the said cause as aforesaid, the said Commission duly formulated an order and notice in relation to the matters and things stated and charged in the said petition, based