same line of road, and thus leaves no room for the operation of competition.

4. A substantial dissimilarity of circumstances and conditions may justify common carriers in charging greater compensation for a shorter than for a longer haul, without first obtaining an order from the commission allowing them to do so. Whether or not the conditions of the carriage are substantially similar is a question of fact, which the railroads may determine for themselves, subject to revision by the commission, when its powers are invoked, and afterwards by the courts. 21 C. C. A. 51, 74 Fed. 715, affirmed.

5. The determination of the commission upon questions of discrimination, under the third section, and on questions as to the similarity of circumstances and conditions, as affecting the right to charge a greater amount for a longer than for a shorter haul, under the fourth section, is not conclusive upon the courts; but, when the power of the courts is invoked to enforce the commisBion's orders, such courts are entitled to determine these questions upon the pleadings and the evidence adduced before the commission, and to hear additional evidence, giving effect, however, to the commission's finding of facts as prima facie evidence of the matters therein stated.

Mr. Justice Harlan dissenting.

Appeal from the United States Circuit Court of Appeals for the Fifth Circuit.

*

On the 27th day of June, 1892, the board of trade of Troy, Ala., filed a complaint before the interstate commerce commission, at Washington, D. C., against the Alabama Midland Railway Company and the Georgia Central Railroad Company and their connections; claiming that, in the rates charged for transportation of property by the railroad companies mentioned, and their connecting lines, there is a discrimination against the town of Troy, in violation of the terms and provisions of the interstate commerce act of congress of 1887.

The general ground of complaint is that, Troy being in active competition for business with Montgomery, the defendant lines of railway unjustly discriminate in their rates against the former, and give the latter an undue preference or advantage, in respect to certain commodities and classes of traffic. The specific charges insisted on at the hearing, and to which the testimony relates, are:

(1) That the Alabama Midland Railway, and the defendant roads, forming lines with it from Baltimore, New York, and the East to Troy and Montgomery, charge and collect a higher rate on shipments of class goods from those cities to Troy than on such shipments through Troy to Montgomery; the latter being the longer-distance point, by 52 miles.

(2) That the Alabama Midland Railway and Georgia Central Railroad and their connections unjustly discriminate against Troy and in favor of Montgomery, in charging and collecting $3.22 per ton to Troy on phosphate rock shipped from the South Carolina and Florida fields, and only $3 per ton on such shipments to Montgomery, the longer-distance point by both of said roads, and that all phosphate rock carried from said fields to Montgomery over the road of the Alabama Midland has to be hauled through Troy.

(3) That the rates on cotton, as established by said two roads and their connections, on shipments to the Atlantic seaports, Brunswick, Savannah, and Charleston, unjustly discriminate against Troy and in favor of Montgomery, in that the rate per 100 ponds from Troy is 47 cents, and that from Montgomery, the longer-distance point, is only 40 cents, and that such shipments from Montgomery over the road of the Alabama Midland have to pass through Troy.

(4) That on shipments for export from Montgomery, and other points within the socalled "jurisdiction" of the Southern Railway & Steamship Association, to the Atlantic seaports, Brunswick, Savannah, Charleston, West Point, and Norfolk, a lower rate is charged than the regular published tariff rate to such seaports, and that Montgomery and such other points are allowed by the rules of said association to ship through to Liverpool via any of these seaports at the lowest through rates on the day of shipment, which may be less than the sum of the regular published rail rate and the ocean rate via the port of shipment; that this reduction is taken from the published tariff rail rate to the port of shipment; that this privilege being denied to Troy is an unjust discrimination against that town, in favor of Montgomery and such other favored cities; and that it is also a discrimination against shipments which terminate at such seaports, in favor of shipments for export.

(5) That Troy is unjustly discriminated against in being charged on shipments of cotton via Montgomery to New Orleans the full local rate to Montgomery by both the Alabama Midland and Georgia Central.

(6) That the rates on "class" goods from Western and Northwestern points, established by the defendants forming lines from those points to Troy, are relatively unjust and discriminatory, as against Troy, when compared with the rates over such lines to Montgomery and Columbus.

The commission, having heard this complaint on the evidence theretofore taken, ordered, on the 15th day of August, 1893, the roads participating in the traffic involved in this case "to cease and desist" from charging, demanding, collecting, or receiving any greater compensation in the aggregate for services rendered in such transportation than is specified as follows, to wit:

(1) On class goods shipped from Louisville, Ky., St. Louis, Mo., or Cincinnati, Ohio, to Troy aforesaid, no higher rate of charge than is now charged and collected on such shipments to Columbus, Ga., and Eufaula, Ala.

(2) On shipments of cotton from Troy aforesaid through Montgomery, Ala., to New Orleans, La., no higher rate of charge than 50 cents per 100 pounds.

(3) On shipments of cotton from Troy aforesaid for export through the Atlantic seaports, to wit, Brunswick, Savannah, Charleston, West Point, or Norfolk, no higher rate

*161

#162

of charge to these ports than is charged and collected on such shipments from Montgomery aforesaid.

(4) On shipments of cotton from Troy aforesaid to the ports of Bruswick, Savannah, or Charleston, no higher rate of charge than is charged and collected on such shipments from Montgomery aforesaid through Troy to said ports.

(5) On shipments of class goods from New York, Baltimore, or other Northeastern points to Troy aforesaid, no higher rate of charge than is charged and collected on such shipments through Troy to Montgomery aforesaid.

(6) On shipments of phosphate rock from South Carolina and Florida fields to Troy aforesaid, no higher rate of charge than is charged and collected on such shipments through Troy to Montgomery aforesaid.

same.

The defendants having failed to heed these orders, the commission thereupon filed this bill of complaint in the circuit court of the United States for the Middle district of Alabama, in equity, to compel obedience to the On the hearing in said court the bill of complaint was dismissed (69 Fed. 227), and complainant, the interstate commerce commission, appealed the cause to the United States circuit court of appeals for the Fifth judicial circuit, at New Orleans, La. And thereupon, in said last-named court, on the 2d day of June, 1896, the decree of the said circuit court of the United States for the Middle district of Alabama was in all things duly affirmed (21 C. C. A. 51, 74 Fed. 715), and from this judgment and decree the appellant has appealed to this court.

*Asst. Atty. Gen. E. B. Whitney, L. A. Shaver, and Geo. F. Edmunds, for appellant. Baxter and A. A. Wiley, for appellees.

Ed.

Mr. Justice SHIRAS, after stating the facts in the foregoing language, delivered the opinion of the court.

Several of the assignments of error complain of the action of the circuit court of appeals in not rendering a decree for the enforcement of those portions of the order of the interstate commerce commission which prescribed rates to be thereafter charged by the defendant companies for services performed in the transportation of goods.

Discussion of those assignments is rendered unnecessary by the recent decisions of this court wherein it has been held, *after elaborate argument, that congress has not conferred upon the interstate commerce commission the legislative power of prescribing rates, either maximum, or minimum, or absolute, and that, as it did not give the express power to the commission, it did not intend to secure the same result indirectly, by empowering that tribunal, after having determined what, in reference to the past, were reasonable and just rates, to obtain from the courts a peremptory order that in the future the railroad

companies should follow the rates thus determined to have been in the past reasonable and just. Cincinnati, N. O. & T. P. R. Co. v. Interstate Commerce Commission, 162 U. S. 181, 16 Sup. Ct. 700; Interstate Commerce Commission v. Cincinnati, N. O. & T. P. R. Co., 167 U. S. 479, 17 Sup. Ct. 896.

Errors are likewise assigned to the action of the court in having failed and refused to affirm and enforce the report and opinion of the commission, wherein it was found and decided, among other things, that the defendant common carriers which participate in the transportation of class goods to Troy from Louisville, St. Louis, and Cincinnati, and from New York, Baltimore, and other Northeastern points, and the defendant common carriers which participate in the transportation of phosphate rock from South Carolina and Florida to Troy, and the defendant common carriers which participate in the transportation of cotton from Troy to the ports of New Orleans, Brunswick, Savannah, Charleston, West Point, or Norfolk, as local shipments, or for export, have made greater charges, under substantially similar circumstances and conditions, for the shorter distance to or from Troy than for longer distances over the same lines in the same direction, and have unjustly discriminated in rates against Troy, and subjected said place and dealers and shippers therein to undue and unreasonable prejudice and disadvantage in favor of Montgomery, Eufaula, Columbus, and other places and localities, and dealers and shippers therein, in violation of the provisions of the act to regulate commerce. Whether competition between lines of transportation to Montgomery, Eufaula, and Columbus justifies the giving to those cities &# preference or advantage in rates over Troy, and, if so, whether such a state of facts justifies a departure from equality of rates without authority from the interstate commerce commission, under the proviso to the fourth section of the act, are questions of construction of the statute, and are to be determined before we reach the question of fact in this

case.

It is contended in the briefs filed on behalf of the interstate commission that the existence of rival lines of transportation, and consequently of competition for the traffic, are not facts to be considered by the commission or by the courts when determining whethe: property transported over the same line is car ried under "substantially similar circumstan ces and conditions," as that phrase is found iv the fourth section of the act.

Such, evidently, was not the construction put upon this provision of the statute by the commission itself in the present case, for the record discloses that the commission made some allowance for the alleged dissimilarity of circumstances and conditions, arising ou of competition and situation, as affecting trans portation to Montgomery and Troy, respective ly, and that among the errors assigned is one complaining that the court erred in not holding

that the rates prescribed by the commission in its order made due allowance for such dissimilarity.

So, too, in case In re Louisville & N. R. Co., 1 Interst. Commerce Com. R. 77, in discussing the long and short haul clause, it was said by the commission, per Judge Cooley, that "it is impossible to resist the conclusion that in finally rejecting the 'long and short haul clause' of the house bill, which prescribed an inflexible rule, not to be departed from in any case, and retaining in substance the fourth section as it had passed the senate, both houses understood that they were not adopting a measure of strict prohibition in respect to charging more for the shorter than for the longer distance, but that they were, instead, leaving the door open for exceptions in certain cases, and, among others, in cases where the circumstances and conditions of the traffic were affected by the element of competition, and where exceptions might be a necessity if the competition was to continue. And water competition was, beyond doubt, especially in view."

It is no doubt true that in a later case (Railroad Commission of Georgia v. Clyde S. S. Co., 5 Interst. Commerce Com. R. 327) the commission somewhat modified their holding in the Louisville & Nashville Railroad Company Case, just cited, by attempting to restrict the competition that it is allowable to consider to the cases of competition with water carriers, competition with foreign railroads, and competition with railroad lines wholly in a single state; but the principle that competition in such cases is to be considered is affirmed.

That competition is one of the most obvious and effective circumstances that make the conditions under which a long and short haul is performed substantially dissimilar, and as such must have been in the contemplation of congress in the passage of the act to regulate commerce, has been held by many of the circuit courts. It is sufficient to cite a few of the number: Ex parte Koehler, 31 Fed. 319; Missouri Pac. Ry. Co. v. Texas & P. R. Co., Id. 862; Interstate Commerce Commission v. Atchison, T. & S. F. R. Co.,50 Fed. 306; Interstate Commerce Commission v. New Orleans & T. P. R. Co., 56 Fed. 943; Behlmer v. Railroad Co., 71 Fed. 835; Interstate Commerce Commission v. Louisville & N. R. Co., 73 Fed.

409.

In construing statutory provisions forbidding railway companies from giving any undue or unreasonable preference or advantage to or 'n favor of any particular person or company, or any particular description of traffic, in any respect whatever, the English courts have held, after full consideration, that competition between rival lines is a fact to be considered, and that a preference or advantage thence arising is not necessarily undue or unreasonable. Denaby Colliery Co. v. Manchester, S. & L. Ry. Co., 11 App. Cas. 97; Phipps v. Railway [1892] 2 Q. B. Div. 229.

But the question whether competition, as affecting rates, is an element for the commis

sion and the courts to consider in applying the provisions of the act to regulate commerce, is not an open question in this court.

In Interstate Commerce Commission v. Baltimore & O. R. Co., 145 U. S. 263, 12 Sup. Ct. 844, it was said, approving observations made by Jackson, Circuit Judge (43 Fed. 37), that the act to regulate commerce was "not designed to prevent competition between different roads, or to interfere with the customary arrangements made by railway companies for reduced fares in consideration of increased mileage, where such reduction did not operate as an unjust discrimination against other persons traveling over the road; that it was not intended to ignore the principle that one can sell at wholesale cheaper than at retail; that it is not all discriminations or preferences that fall within the inhibitions of the statute,only such as are unjust or unreasonable"; and accordingly it was held that the issue by a railway company, engaged in interstate commerce, of a "party-rate ticket" for the transportation of 10 or more persons from a place situated in one state or territory to a place situated in another state or territory, at a rate less than that charged to a single individual for a like transportation on the same trip, does not thereby make "an unjust or unreasonable charge" against such individual, within the meaning of the first section of the act to regulate commerce, nor make "an unjust discrimination" against him, within the meaning of the second section, nor give "an undue or unreasonable preference or advantage" to the purchasers of the party-rate ticket, within the meaning of the third section.

*165

In Texas & P. R. Co. v. Interstate Commerce Commission, 162 U. S. 197, 16 Sup. Ct. 666, it was held that, "in passing upon questions arising under the act, the tribunal appointed to enforce its provisions, whether the commission or the courts, is empowered to fully consider all the circumstances and conditions that reasonably apply to the situation, and that, in the exercise of its jurisdiction, the tribunal may and should consider the legitimate interests as well of the carrying companies as of the traders and shippers, and, in considering whether any particular locality is subjected to an undue preference or disadvantage, the welfare of the communities occupying the localities where the goods are delivered* is to be considered as well as that of the communities which are in the locality of the place of shipment; that among the circumstances and conditions to be considered, as well in the case of traffic originating in foreign ports as in the case of traffic originating within the limits of the United States, competition that affects rates should be considered, and in deciding whether rates and charges, made at a low rate to secure freights which would otherwise go by other competitive routes, are or are not undue and unjust, the fair interests of the carrier companies and the welfare of the community which is to receive and consume the commodities are to be considered."

167

To prevent misapprehension, it should be stated that the conclusion to which we are led by these cases, that, in applying the provisions of the third and fourth sections of the act, which make it unlawful for common carriers to make or give any undue or unreasonable preference or advantage to any particular person or locality, or to charge or receive any greater compensation in the aggregate for the transportation of passengers or of like kind of property, under substantially similar circumstances and conditions, for a shorter than for a longer distance over the same line, in the same direction, competition which affects rates is one of the matters to be considered, is not applicable to the second section of the act.

As we have shown in the recent case of Wight v. U. S., 167 U. S. 512, 17 Sup. Ct. 822, the purpose of the second section is to enforce equality between shippers over the same line, and to prohibit any rebate or other device by which two shippers, shipping over the same line, the same distance, under the same circumstances of carriage, are compelled to pay different prices therefor; and we there held that the phrase, “under substantially similar circumstances and conditions," as used in the second section, refers to the matter of carriage, and does not include competition between rival routes.

This view is not open to the criticism that different meanings are attributed to the same words when found in different sections of the act; for what we hold is that, as the purposes of the several sections are different, the phrase under consideration must be read, in the second section, as restricted to the case of shippers over the same road, thus leaving no room for the operation of competition, but that in the other sections, which cover the entire tract of interstate and foreign commerce, a meaning must be given to the phrase wide enough to include all the facts that have a legitimate bearing on the situation, among which we find the fact of competition when it affects rates.

In order further to guard against any misapprehension of the scope of our decision, it may be well to observe that we do not hold that the mere fact of competition, no matter what its character or extent, necessarily relieves the carrier from the restraints of the third and fourth sections, but only that these sections are not so stringent and imperative as to exclude in all cases the matter of competition from consideration, in determining the questions of "undue or unreasonable preference or advantage," or what are "substantially similar circumstances and conditions." The competition may in some cases be such as, having due regard to the interests of the public and of the carrier, ought justly to have effect upon the rates, and in such cases there is no absolute rule which prevents the commission or the courts from taking that matter into consideration.

It is further contended on behalf of the appellant that the courts below erred in hold18 S.C.-4

ing, in effect, that competition of carrier with carrier, both subject to the act to regulate commerce, will justify a departure from the rule of the fourth section of the act without authority from the interstate commerce commission, under the proviso to that section.

In view of the conclusion herein before reached, the proposition comes to this: That when circumstances and conditions are substantially dissimilar the railway companies can only avail themselves of such a situation by an application to the commission.

The language of the proviso is as follows: "That upon application to the commission appointed under the provisions of this act, such common carrier may, in special cases, after investigation by the commission, be authorized to charge less for longer than shorter * distances for the transportation of persons or property, and the commission may from time to time prescribe the extent to which such designated common carrier may be relieved from the operation of this section of this act."

The claim now made for the commission is that the only body which has the power to relieve railroad companies from the operation of the long and short haul clause on account of the existence of competition, or any other similar element which would make its application unfair, is the commission itself, which is bound to consider the question, upon application by the railroad company, but whose decision is discretionary and unreviewable.

The first observation that occurs on this proposition is that there appears to be no allegation in the bill or petition raising such an issue. The gravamen of the complaint is that the defendant companies have continued to charge and collect a greater compensation for services rendered in transportation of property than is prescribed in the order of the commission. It was not claimed that the defendants were precluded from showing in the courts that the difference of rates complained of was justified by dissimilarity of circum, stances and conditions, by reason of not having applied to the commission to be relieved from the operation of the fourth section.

Moreover, this view of the scope of the proviso to the fourth section does not appear to have ever been acted upon or enforced by the commission. On the contrary, in the case of In re Louisville & N. R. Co. v. Interstate Commerce Commission, 1 Interst. Commerce Com. R. 57, the commission, through Judge Cooley, said, in speaking of the effect of the introduction into the fourth section of the words, "under substantially similar circumstances and conditions," and of the meaning of the proviso: "That which the act does not declare unlawful must remain lawful, if it was so before; and that which it fails to forbid the carrier is left at liberty to do, without permission of any one. The charging or receiving the greater compensation for the shorter than for the longer haul is seen to be forbidden only when both are under substan

tially similar *circumstances and conditions; and therefore if in any case the carrier, without first obtaining an order of relief, shall depart from the general rule, its doing so will not alone convict it of illegality, since, if the circumstances and conditions of the two hauls are dissimilar, the statute is not violated.

*

Beyond question, the carrier must judge for itself what are the 'substantially similar circumstances and conditions' which preclude the special rate, rebate, or drawback which is made unlawful by the second section, since no tribunal is empowered to judge for it until after the carrier has acted, and then only for the purpose of determining whether its action constitutes a violation of law. The carrier judges on peril of the consequences, but the special rate, rebate, or drawback which it grants is not illegal when it turns out that the circumstances and conditions were not such as to forbid it; and, as congress clearly intended this, it must also, when using the same words in the fourth section, have intended that the carrier whose privilege was in the same way limited by them should in the same way act upon its judgment of the limiting circumstances and conditions."

The view thus expressed has been adopted in several of the circuit courts. Interstate Commerce Commission v. Atchison, T. & S. F. R. Co., 50 Fed. 300; Interstate Commerce Commission v. Cincinnati, N. O. & T. P. Ry. Co., 56 Fed. 942; Behlmer v. Railroad Co., 71 Fed. 839. And we do not think the courts below erred in following it in the present case. We are unable to suppose that congress intended, by the fourth section and the proviso thereto, to forbid common carriers, in cases where the circumstances and conditions are substantially dissimilar, from making different rates until and unless the commission shall authorize them so to do. Much less do we think that it was the intention of congress that the decision of the commission, if applied to, could not be reviewed by the courts. The provisions of section 16 of the act, which authorize the court to "proceed to hear and determine the matter speedily as a court of equity, and without the formal pleadings and proceedings applicable to ordinary suits in equity, but in such manner as to do justice in the premises, and to this end, such court shall have power, if it think fit, to direct and prosecute in such mode and by such persons as it may appoint, all such inquiries as the court may think needful to enable it to form a just judgment in the matter of such petition," extend as well to an inquiry or proceeding under the fourth section as to those arising under the other sections of the act.

Upon these conclusions, that competition between rival routes is one of the matters which may lawfully be considered in making rates, and that substantial dissimilarity of circumstances and conditions may justify common carriers in charging greater compensation for the transportation of like kinds of property

for a shorter than for a longer distance over the same line, we are brought to consider whether, upon the evidence in the present case, the courts below erred in dismissing the interstate commerce commission's complaint.

As the third section of the act, which forbids the making or giving any undue or unreasonable preference or advantage to any particular person or locality, does not define what, under that section, shall constitute a preference or advantage to be undue or unreasonable, and as the fourth section, which forbids the charging or receiving greater compensation in the aggregate for the transportation of like kinds of property for a shorter than for a longer distance over the same line, under substantially similar circumstances and conditions, does not define or describe in what the similarity or dissimilarity of circumstances and conditions shall consist, it cannot be doubted that whether, in particular instances, there has been an undue or unreasonable prejudice or preference, or whether the circumstances and conditions of the carriage have been substantially similar or otherwise, are questions of fact, depending on the matters proved in each case. Denaby Main Colliery Co. v. Manchester Ry. Co., 3 Railway & Can. Cas. 426; Phipps v. Railway [1892] 2 Q. B. Div. 229; Cincinnati, N. O. & T. P. R. Co. v. Interstate Commerce Commission, 162 U. S. 184, 194, 16 Sup. Ct. 700; Texas & P. R. Co. v. Interstate Commerce Commission, 162 U. S. 197, 235, 16 Sup. Ct. 666. The circuit court, after a consideration of* the evidence, expressed its conclusion thus: "In any aspect of the case, it seems impossible to consider this complaint of the board of trade of Troy against the defendant railroad companies, particularly the Midland and Georgia Central Railroads, in the matter of the charges upon property transported on their roads to or from points east or west of Troy, as specified and complained of, obnoxious to the fourth or any other section of the interstate commerce act. The conditions are not substantially the same, and the circumstances are dissimilar, so that the case is not within the statute. The case made here is not the case as it was made before the commission. New testimony has been taken, and the conclusion reached is that the bill is not sustained; that it should be dismissed; and it is so ordered." 69 Fed. 227.

The circuit court of appeals, in affirming the decree of the circuit court, used the following language:

"Only two railroads, the Alabama Midland and the Georgia Central, reach Troy. Each of these roads has connection with other lines, parties hereto, reaching all the longdistance markets mentioned in these proceedings. The commission finds that no departure from the long and short haul rule of the fourth section of the statute, as against Troy, as the shorter distance point, and in favor of Montgomery, as the longer distance point, appears to be chargeable to the Georgia Cen