Compensation implies three things-payment of the cost of service, interest on bonds, and then some dividend. Southern Pac. Co. v. Railroad Commissioners, 78 Fed. Rep. 262.

An ordinance has been held void under the Fourteenth Amendment, as depriving the company of its property without due process of law which requires a street railroad company to reduce its rates, "when the road was only making yearly net earnings of 3.3 per cent., to 4.5 per cent. on its bona fide investment, and paying 5 per cent. interest on its bonds, in a city where the current rate of interest on first mortgage real estate security is 6 per cent." Milwaukee El. Ry. v. Milwaukee, 87 Fed. Rep. 577.

Mr. J. M. Barrs, with whom Mr. W. H. Ellis, Attorney General of the State of Florida, was on the brief, for defendant in error.1

MR. JUSTICE BREWER, after making the foregoing statement, delivered the opinion of the court.

Passing all matters of a local nature, in respect to which the decision of the state court is final, the Federal question is whether the order of the railroad commission, sustained by the Supreme Court of the State, deprived the company of its property without due process of law or denied to it the equal protection of the law. The testimony taken before the commission was not preserved, but by the law of the State the rates established by such commission are to be taken in all courts as prima facie just and reasonable. Laws Florida, 1899, pp. 76, 82, Chap. 4700, Sec. 8. We start, therefore, with the presumption in favor of the order.

The testimony on the hearing of the application in the Supreme Court is, however, in the record. That court, in the exercise of its original jurisdiction of mandamus cases, determines questions of fact as well as of law. State ex rel. v. County Commissioners of Suwannee County, 21 Florida, 1. 1 For abstract of argument, see p. 266, post.

While it did not make any distinct findings of fact, yet its deductions from the testimony are clearly indicated by the quotations from its opinion. If it be said that in the absence. of special findings of fact it is the duty of this court to examine the testimony upon which the judgment was entered, it is very clear that there was no sufficient evidence presented to that court to justify a refusal to enforce the order of the railroad commission.

And here we face this situation: The order of the commission was not operative upon all local rates but only fixed the rate on a single article, to wit, phosphate. There is no evidence of the amount of phosphates carried locally; neither is it shown how much a change in the rate of carrying them will affect the income, nor how much the rate fixed by the railroads for carrying phosphate has been changed by the order of the commission. There is testimony tending to show the gross income from all local freights and the value of the railroad property, and also certain difficulties in the way of transporting phosphates owing to the lack of facilities at the terminals. But there is nothing from which we can determine the cost of such transportation. We are aware of the difficulty which attends proof of the cost of transporting a single article, and in order to determine the reasonableness of a rate prescribed it may sometimes be necessary to accept as a basis the average rate of all transportation per ton per mile. We shall not attempt to indicate to what extent or in what cases the inquiry must be special and limited. It is enough for the present to hold that there is in the record nothing from which a reasonable deduction can be made as to the cost of transportation, the amount of phosphates transported, or the effect which the rate established by the commission will have upon the income. Under these circumstances it is impossible to hold that there was error in the conclusions reached by the Supreme Court of the State of Florida, and its judgment is

Affirmed.

SEABOARD AIR LINE RAILWAY v. FLORIDA ex rel ELLIS, ATTORNEY GENERAL.

ERROR TO THE SUPREME COURT OF THE STATE OF FLORIDA.

Nos. 10, 11. Argued March 2, 5, 1906.-Decided December 3, 1906.

Atlantic Coast Line v. Florida ex rel. Ellis, ante, p. 256, followed. Where the record does not disclose why an order of a state railroad commission was made applicable only to certain local and intrastate rates, but the state law provides that rates so fixed are to be considered in all courts as prima facie just and reasonable, and the effect of the order was to equalize rates, this court will not hold the judgment of the highest court of the State sustaining the rate, was erroneous. A State may insist upon equality of intrastate railroad rates, the conditions being the same, without depriving the railroad company of its property without due process of law.

It will be presumed that a state railroad commission acts in fixing an intrastate railroad rate with full knowledge of the situation, and where the record does not disclose all the evidence, a rate sustained by the highest court of the State will not be held by this court to be confiscatory and depriving the railroad company of its property without due process of law where it appears by the report of the company that the rate exceeds the average rate received by the company during the previous year. 48 Florida, 129 and 150, affirmed.

THESE cases resemble the one immediately preceding, in this, that review is sought in each of an award of a peremptory writ of mandamus by the Supreme Court of Florida to compel compliance with an order of the state railroad commission. In the first the court sustained an order of the commission, made June 25, 1903, and to go into effect July 1, 1903, prescribing rates on the Florida West Shore Railway, charged to be under the control and management of the plaintiff in error, 48 Florida, 129-152, the order being in these words: "It is hereby ordered and adjudged by the railroad commission of the State of Florida that the following schedule of freight tariffs shall be allowed and adopted for freight shipments over the

Argument for Plaintiff in Error.

203 U. S.

Seaboard Air Line Railway, to apply only to shipments from or destined to points on the Florida West Shore Railway, and from points on the Florida West Shore Railway to points on the Florida West Shore Railway, and the same shall be put into operation and be effective on the first day of July, a. D. 1903," and followed by the schedule; and in the second, it enforced the order of the commission in respect to phosphates (which was noticed by us in the opinion in the preceding case). 48 Florida, 150.

The proceedings before the commission are not disclosed, nor is there anything to show upon what the orders were based. There was notice and a hearing. And in the pleadings in the first case appear the contracts between the plaintiff in error and the Florida West Shore Railway.

In the Supreme Court the relator presented no testimony, relying upon the statutory presumption which attends an order of the commission. The defendant introduced the report which it had made to the railroad commission for the year ending June 30, 1904, and the report of the railroad commission to the Governor of the State for the year ending March 1, 1904, and upon these two reports the cases were considered by the Supreme Court.

Mr. Hilary A. Herbert and Mr. George P. Raney, with whom Mr. Benjamin Micou was on the brief, for plaintiff in error, in this case and in No. 9 argued simultaneously herewith.1

If this court sustains the court below then, by § 13 of the railroad commission law of Florida, for every failure to comply with any requirement of either of the two orders appealed from the injured person may bring suit and recover damages, court costs and lawyers' fees. In other words, the roads are at the mercy of any injured person who, under the phosphate order, has demanded of us to load and carry a ton of phosphate

1 Atlantic Coast Line v. Florida ex rel. Ellis, ante, p. 256.

203 U. S.

Argument for Plaintiff in Error.

one mile and unload it for one cent, or load and carry it for five miles and then unload it, all for five cents.

The Seaboard Air Line Railway Company is not paying any dividends to its stockholders and its business in Florida is now conducted at rates so low that any material reduction would be unreasonable. And the order of the Florida commission in relation to phosphates is discriminatory, exceptional and partial as to the particular subject matter. On its face it is an irregular, unjust, and intolerable method of rate fixing.

The order makes the rate the same for one mile as for one hundred miles, and it is material because it applies to 16.43 per cent, of all the intrastate freight business of the appellant company in Florida.

All railroad literature with which we are familiar, whether originating in discussions before legislative bodies, railroad commissions, or courts, distinguishes between long and short hauls, since it is matter of common knowledge that no railroad carrier can transport freight at the same rate per ton per mile for long and short distances. Grading rates according to mileage may not, it is well recognized, secure perfectly fair compensation, but as the best and only practicable method of approximating justice we believe it may be called an unvarying custom.

It has been the custom of the railroad commission of Florida in other cases to follow this rule of grading rates with some reference to mileage as is shown by the record in both these The commission, however, has selected phosphates to signalize a new departure from this just principle.

cases.

A railroad company may sometimes, for purposes of its own, do things which a commission cannot be justified in ordering. Louisville & Nashville R. Co. v. Behlmer, 175 U. S. 669. Just such an order as this, however, we cannot conceive that any railway company has ever prescribed for itself.

Appellant's rates on phosphates were, when altered, for long distances less than one cent per ton per mile, and more for shorter distances. If the rates between any points or for