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Opinion of the Court.

This course proceeded, we think, upon an erroneous view of the position of the case. That question was not presented to the consideration of the court. There was no allegation in the Commission's bill or petition that the inland rates charged by the defendant company were unreasonable. That issue was not presented. The defendant company was not called upon to make any allegation on the subject. No testimony was adduced by either party on such an issue. What the Commission complained of was that the defendant refused to recognize the lawfulness of its order; and what the defendant asserted, by way of defence, was that the order was invalid, because the Commission had avowedly declined to consider certain “circumstances and conditions” which, under a proper construction of the act, it ought to have considered.

If the Circuit Court of Appeals was of opinion that the Commission in making its order had misconceived the extent of its powers, and if the Circuit Court bad erred in affirming the validity of an order made under such misconception, the duty of the Circuit Court of Appeals was to reverse the decree, set aside the order, and remand the cause to the Commission, in order that it might, if it saw fit, proceed therein according to law. The defendant was entitled to have its defence considered, in the first instance at least, by the Commission upon a full consideration of all the circumstances and conditions upon which a legitimate order could be founded. The questions whether certain charges were reasonable or otherwise, whether certain discriminations were due or undue, were questions of fact, to be passed upon by the Commission in the light of all facts duly alleged and supported by competent evidence, and it did not comport with the true scheme of the statute that the Circuit Court of Appeals should undertake, of its own motion, to find and pass upon such questions of fact, in a case in the position in which the present

one was.

We do not, of course, mean to imply that the Commission may not directly institute proceedings in a Circuit Court of the United States charging a common carrier with disregard of provisions of the act, and that thus it may become the duty

Dissenting Opinion : Harlan, Brown, JJ.

of the court to try the case in the first instance. Nor can it be denied that, even when a petition is filed by the Commission for the purpose of enforcing an order of its own, the court is authorized to “hear and determine the matter as a court of equity,” which necessarily implies that the court is not concluded by the findings or conclusions of the Commission; yet as the act provides that, on such hearing, the findings of fact in the report of said Commission shall be prima facie evidence of the matters therein stated, we think it plain that if, in such a case, the Commission has failed in its proceedings to give notice to the alleged offender, or has unduly restricted its inquiries upon a mistaken view of the law, the court ought not to accept the findings of the Commission as a legal basis for its own action, but should either inquire into the facts on its own account, or send the case back to the Commission to be lawfully proceeded in.

The mere fact that the disparity between the through and the local rates was considerable did not, of itself, warrant the court in finding that such disparity constituted an undue discrimination — much less did it justify the court in finding that the entire difference between the two rates was undue or unreasonable, especially as there was no person, firm, or corporation complaining that he or they had been aggrieved by such disparity. T'he decree of the Circuit Court of Appeals is reversed ; the

decree of the Circuit Court is also reversed ; and the cause is

remanded to that court, with directions to dismiss the bill. MR. JUSTICE Harlan, with whom concurred Mr. JUSTICE Brown, dissenting.

The Interstate Commerce Act, as amended March 2, 1889, requires every common carrier, subject to its provisions, to print and keep open to public inspection schedules showing its rates and charges for the transportation of passengers and property. It also requires that such schedules "shall plainly state the places upon its railroad between which property and passengers will be carried, and shall contain the classification of freight in force;" further, that any common carrier subject

Dissenting Opinion: Harlan, Brown, JJ.

to the provisions of the act, “receiving freight in the United States to be carried through a foreign country to any place in the United States shall also in like manner print and keep open to public inspection, at every depot or office where such freight is received for shipment, schedules showing the through rates established and charged by such common carrier to all points in the United States beyond the foreign country to which it accepts freight for shipment.”

The act contains no provision for printed schedules to be kept open to public inspection, of freight shipped from a foreign country, not adjacent to this country, on a through bill of lading, and to be carried, after it reaches an American port, to some place in the United States. I think the reason for this is that Congress did not intend that the rates to be charged for service by carriers subject to the provisions of the Interstate Commerce Act should depend upon or be affected by rates established abroad for ocean transportation.

The Commission, thus interpreting the act of Congress, and in order that American interests might not be injuriously affected by freight arrangements made by railroad companies with companies engaged in ocean transportation and which were not subject to our laws, issued on the 23d day of March, 1889, the following general order: “Imported traffic transported to any place in the United States from a port of entry or place of reception, whether in this country or in an adjacent foreign country, is required to be taken on the inland tariff covering other freights.”

Subsequently, November 29, 1889, proceedings were commenced before the Commission by the petition of the New York Board of Trade and Transportation against the Pennsylvania Railroad Company, the Pittsburgh, Fort Wayne and Chicago Railroad Company and the Pittsburgh, Cincinnati and St. Louis Railroad Company.

The petition charged that those companies violated the Interstate Commerce Act and were guilty of unjust discriminations, in that they charged their regular tariff rates upon property delivered to them at New York and Philadelphia for transportation to Chicago and other Western points, while

Dissenting Opinion: Harlan, Brown, JJ.

charging rates much lower for a like cotemporaneous service under substantially similar circumstances and conditions when the property was or is delivered to them at New York or Philadelphia by vessels and steamship lines, under through bills of lading from foreign ports and foreign interior ports, issued under common arrangement between the defendants and such vessels and steamship lines and foreign railroads for continuous carriage at joint rates from the point or port of shipment to Chicago and other Western points; the defendants' share of such through rate for the inland transportation being lower than its regular tariff rates, in some cases as low as fifty per cent thereof.

The petition further charged that the defendants failed to state in their published tariffs or in such through bills of lading the inland charge separately from the ocean and other charges in order to prevent ascertainment of the actual inland rates; that they made and gave undue and unreasonable preferences and advantages to persons, firms, companies, corporations and localities interested in the transportation of imported traffic from the seaboard under such through bills of lading, and had subjected persons, companies, firms and corporations, in and about some localities to undue and unreasonable prejudice and disadvantage by reason of the higher rates charged to them for like and contemporaneous service under substantially similar circumstances and conditions ; that there are no conditions or circumstances relating to the transportation of imported traffic which justify any difference in rates between imported traffic transported to any place in the United States from a port of entry and other traffic from such ports, and that the inland published tariff must by law be the same for all such freights.

In the course of the proceedings different Commercial Exchanges and Chambers of Commerce became co-plaintiffs, and other railroads were made defendants.

It appears from the opinion of the Interstate Commerce Commission that numerous roads conformed to the order of March 23, 1889, and insisted that their inland rates were the same for all traffic, whether domestic or imported.

VOL. CLXII-16

Dissenting Opinion: Harlan, Brown, JJ.

In the progress of the proceedings the Texas and Pacific Railway Company was brought before that tribunal; and on the 29th day of January, 1891, an order was made that certain railroad companies, including the Texas and Pacific Railway Company, should wholly cease and desist from carrying any article of import traffic shipped from any foreign port through any port of entry of the United States, or any port of entry in a foreign country adjacent to the United States, upon through bills of lading, and destined to any place within the United States, upon any other than the published inland tariff covering the transportation of other freight of like kind over their respective lines from such port of entry to such place of destination, or at any other than the same rates established in said published inland tariff for the carriage of other like kind of traffic in the elements of bulk, weight, value and expense of carriage.

The present case was commenced by the Interstate Commerce Commission by petition filed in the Circuit Court of the United States for the Southern District of New York against the Texas and Pacific Railway Company.

A decree was entered by that court, enjoining the latter company, its board of directors, officers, agents, attorneys, clerks, servants, employés and all persons claiming or holding under them, or either, or any of them, from carrying any article of import traffic shipped from any foreign port through any port of entry in the United States, or any port of entry in a foreign country adjacent to the United States, upon through bills of lading, and destined to any place within the United States, upon any other than the published inland tariff covering the transportation of other freight of like kind over its line from such port of entry to such place of destination; or at any other than the same rates established in said published tariff for the carriage of other like kinds of traffic in the elements of bulk, weight, value and expense of carriage; or from carrying imported traffic at lower rates for like service than the defendant charges for like traffic originating in the United States; or from charging or accepting for its share of through rates upon imported traffic a lower sum than it

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