"In determining what would be fair and equitable rates to Norfolk a comparison of population and of rates and distances between eastern points and Norfolk and Columbus may be of some advantage. The two cities are located about 50 miles apart, Columbus being a little east of a north and south line through Norfolk. By the census of 1900 the population of Platte County, in which Columbus is located, was 10,542, while the population of Madison County, in which Norfolk is located, was 9,255. The population of Columbus was 3,522, and that of Norfolk was 3,883. The former is the junction point of the Union Pacific and Burlington roads, and the latter the junction of the C., St. P., M. & O. and the F., E. & M. V. roads. The railway distances from eastern points are as follows:

The rates between Chicago and Norfolk, however, are considerably higher than between Chicago and Columbus, and the difference furnishes an indication of the extent to which we regard the Norfolk rates as excessive. In other words, taking all the facts and circumstances into account, the reduction which we think should be made would give Norfolk the same Chicago rates as Columbus now enjoys."2

Except so far as it has an evidentiary bearing on the reasonableness of the rate in question, rates to other places or from other points of shipment are not material at common law.3

$833. Weight to be given to such evidence.

How much weight shall be given to such evidence must, of course, depend on the facts of each case. When rates to Dan

2 Yeomans, Com. in Johnson v. Chicago, S. P., M. & O. Ry., 9 I. C. C. Rep. 221, 244 (1902).

3 Interstate Commerce Commission v. Louisville & N. R. R., 73 Fed. 409 (1896).

ville were in question the Court gave considerable weight to rates charged for similar hauls. "Whether or not the Danville rates are reasonable per se is a question that has given me no small amount of trouble. That the cost of transporting freight by wagons is not a proper test is very clear. The rates at Lynchburg cannot be alone used as a basis of comparison. The criteria to which I think the greatest weight should be given are as follows: The opinions of expert witnesses; the effect of the present rates on the growth and prosperity of Danville; the cost of transportation as compared with the rates charged; and the rates in force at numerous other cities, where the circumstances are as nearly similar as may be to those prevailing at Danville. . . . The inconclusive and unsatisfactory results, and the inherent difficulties in applying the above-mentioned tests, have led me to the conclusion that the most satisfactory test to be applied in this case is to compare the Danville rates with those in force at numerous other cities and towns in the South, where the circumstances are as nearly as may be similar to those at Danville. This has been done by numerous witnesses for the defense. The rates to and from a great number of towns and cities in the South-some larger and some smaller, some of more and some of less commercial importance, than Danville; some inland and some having water as well as rail transportation; some being on only one railroad and some having more than one road-have been shown. The result of comparisons between these rates and the Danville rates is the conclusion that the latter compare favorably with the former. It may be said that the rates used for comparison are themselves unreasonably high. But the expert witnesses for the defense who alone testify on the point—are of opinion that they are not; and, if it be true that they are unreasonably high, evidence to this effect should have been introduced by the complainant. Again, it may be true that there are many cities in the South that are fairly to be compared with Danville, the rates at which are much lower than the Dan

ville rates. But, if so, no evidence to this effect has been introduced." 4

834. Lower rate as evidence of unreasonableness of higher. In the case of Interstate Commerce Commission v. East Tennessee, Virginia and Georgia Railway, in the Circuit Court, Judge Severans expressed the strong opinion that a less rate for a longer haul tended to prove the higher rate unreasonable.

"It is assumed in argument by counsel in making defense that the rates to Chattanooga are just and reasonable in themselves. This, it is said, is conceded, and upon the premises it is urged, in substance, that the public at Chattanooga has no right to complain if the respondents lower their rates to Nashville. In one sense, this is true. But the suggestion is fruitful of other considerations. The question whether the rates are just and reasonable in themselves is in some measure a relative one; that is to say, it may be tested by a comparison of the particular rates with those accepted elsewhere for a similar service, and whether the instances thus employed are or are not such as by their relation to the case in hand are subject to the operation of some other provision of the commerce act, is immaterial. Besides, I think the question of the justness and reasonableness of rates under the first section is colored by the other provisions of the law, and by the general policy of the whole enactment, which is to effect the equality of charges. And, at all events, it seems to me clear that the charges accepted for a longer haul may be referred to for the purpose of considering the reasonableness of the charges made for the shorter haul. Such comparisons are applied to every other kind of business, and the fact that there

may be competition in such business would not be a controlling consideration, for the presumption would always be that the com

4 Quoted from McDowell, Dist. J., in Int. Com. Commission v. Southern Ry., 117 Fed. 741 (1902).

5 85 Fed. 107 (1898).

pensation charged for the service or thing is sufficient to be reasonable. The presumption is not, of course, a conclusive one, but would seem a fair one, in the absence of special circumstances. It is not according to my understanding that it is conceded that the rates to Chattanooga are just and reasonable in themselves.”

In that case the Supreme Court did not pass upon the reasonableness of the lower rate in itself on the ground that the Commission had not done so. But in that and other cases the Supreme Court has carefully refrained from expressing an opinion as to the extent to which the Commission might use the lower rate as evidence of the unreasonableness of the higher rate.

835. Higher rate not necessarily unreasonable.

On the other hand, it has been held that a comparison of rates between two places is not of itself enough to justify the conclusion that the higher rate is unreasonable, even if the difference is not explained by the carrier.

"The bill in this case charges that the rates charged by the appellees on goods shipped from St. Louis and Tennessee points to Hampton, Fla., are unreasonably high in themselves, in violation of section 1 of the act to regulate commerce. As we read the opinion of the Commission, filed as an exhibit to the bill, the Commission did not find that the IIampton rates were in and of themselves unreasonable, but found argumentatively that they were too high, not as based upon the matters to be considered in determining such questions, as pointed out in United States v. Freight Association, and Smyth v. Ames, but largely upon a consideration of rates and charges between St. Louis, Nashville and Chattanooga, and Jacksonville and Palatka, Fla. The evidence submitted to the Commission, supplemented by evidence

6 East Tennessee V. & G. Ry. v. Interstate Commerce Com., 181 U. S. 1, 45 L. Ed. 719, 21 Sup. Ct. 516 (1901).

7166 U. S. 331, 17 Sup. Ct. 540, 41 L. Ed. 1007.

8 169 U. S. 546, 547, 18 Sup. Ct. 418, 42 L. Ed. 819.

taken in the Circuit Court, is not sufficient for us to find affirmatively that the Hampton rates were in and of themselves unreasonable. The Commission furnishes the authority for the proposition that with regard to the exaction of unreasonable rates the burden of proof is on the complainant. Certainly, the complainant has failed in this instance to prove that the Hampton rates were in violation of the first section of the Interstate Commerce Act." 10

§ 836. What circumstances may be considered.

11

Unlike circumstances which will justify discrimination are circumstances connected with the traffic over the line on which the discrimination is made. "If the respondent is acting, or claims to act, under the compulsion of circumstances and conditions of its own creation or connivance in the making of an exceptional rate, then these will not avail it." Therefore where goods were offered to a carrier at Mobile it could not charge more than the Mobile rate, on the ground that the carriage of the goods really originated at another place and had been brought from there by a cheap conveyance instead of by a carrier with whom the present carrier had a traffic arrangement:12 and the same thing is true in the case of carriage of passengers.13

§ 837. Elements affecting cost of service at one point.

The comparison between two points may be affected by other circumstances besides competition, so as to prove a discrimina

9 See Harding v. C., St. P., M. & O. R. Co., 1 I. C. C. Rep. 104 (1887); Brewer v. L. & N. R. R. Co., 71 I. C. C. Rep. 234 (1897).

10 The quotation is from Pardee, J., in Interstate Com. Com. v. Nashville, C. & St. L. Ry., 120 Fed. 934 (1903).

11 Business Men's Assoc. v. Chicago, S. P., M. & O. R. R., 2 Int. Com. Rep. 41. 2 I. C. C. Rep. 52 (1888).

12 Bigbee & W. R. Packet Co. v. Mobile & O. R. R., 60 Fed. 545 (1893). 13 Bennett v. Dutton, 10 N. H. 481, B. & W. 105 (1839).