and the ratio of tonnage cost per mile diminishes with distance.

While the rate made from Chicago to Buffalo of fifteen cents per hundred pounds may be regarded as a low rate, the local charge from Chicago to Port Huron of nine cents per hundred pounds is also a low rate, but is probably all that can be charged in view of the existing competition, and of the general circumstances and conditions of the transportation. Under these tariffs Port Huron has the same rate from Chicago as Detroit and Toledo, although the distance to Port Huron is considerably greater than to the other points.

On grain shipments from Chicago to these cities Port Huron suffers no prejudice on account of its greater distance, but has all the advantages of the same rate for the traffic with fifty miles longer haul than Detroit and ninety-one miles more than Toledo. The proportion of the through rate from Chicago to Buffalo received by the Grand Trunk Railway of Canada of about five and a half cents per hundred pounds leaves a margin of two and a half cents per hundred pounds between its proportion of the through rate and its local rate of eight cents per hundred pounds on grain from Port Huron to Buffalo, and four and a half cents margin between it and the ten-cent rate on grain products.

This standing alone, it might be assumed, could scarcely be justified, but the other facts in evidence are confidently claimed by the respondents to justify the local rate. These are, in the first place, the terminal charge of $1.50 per car for car-loads, and of three cents per hundred pounds for less than car-loads, paid by the Grand Trunk Railway Company of Canada to the Chicago & Grand Trunk Railway Company for switching charges upon all business originating at Port Huron and going eastward. The evidence on this point is not very satisfactory, but leaves the matter of this alleged terminal charge in a rather vague and uncertain state. The tracks on which the terminal service is rendered belong to the Grand Trunk Railway of Canada, the engines used for the service appear to be quite as often those of the Grand Trunk Railway as of the Chicago & Grand Trunk; and the

business reason for the allowance of this charge was not made distinctly to appear. But the other facts are entirely free from doubt. The Grand Trunk Railway of Canada has its valuable and expensive terminals at Port Huron to maintain, and its clerical force and other employees for the conduct of its business; it has the expense of the ferry across the St. Clair river, and the bridge expense across the Niagara river, and the terminal charges for delivery at Buffalo. These are all borne exclusively by the Grand Trunk Railway of Canada upon the business originating upon its line at Port Huron and eastward. The evidence does not show with any precision what these several expenses are, either in the aggregate or what would be a fair distribution of them per carload or per hundred pounds of freight. The defendants assume in their brief that the burden of showing these expenses was upon the petitioner; but this assumption is altogether erroneous. It would impose on persons conceiving themselves aggrieved by carriers a difficult and onerous rule of evidence. It would be impossible for the petitioners to show such facts otherwise than by the defendants' agents, and it was clearly the province of the defendant to make them appear. No presumption arises that a rate is reasonable from the mere fact that it has been put in effect; and when it is prima facie disproportionate or relatively unequal, the onus is on the carrier to justify its charges when challenged on those grounds. The knowledge of the justifying circumstances and conditions relied on is peculiarly in possession of the carrier. In the absence of evidence of this character the Commission can not determine with any degree of exactness how much additional charge the Grand Trunk Railway is reasonably entitled to make for these expenses. It is obvious, however, and entirely equitable, that some allowance is proper and necessary for this purpose, and it is not manifest that the rate in effect is excessive. But, though there may be some doubt on the evidence as to the extent of a just allowance for these additional expenses, it seems reasonably clear to the Commission that a charge of ten cents per hundred pounds from Port Huron to Buffalo on grain or grain products, while a fifteen-cent through rate is in effect

from Chicago to Buffalo, is not supported by the evidence, and is apparently disproportionate and unreasonable.

The petitioners claim that the local charge from Port Huron to Buffalo should not exceed six and a half or seven cents per hundred pounds, and refer to tariffs that were in effect prior to the date of the Act to regulate commerce, in support of their contention. Rates made prior to that date, however, which were supposed not to be governed by legal constraints, and were often unduly preferential at particular points, are not a fair test for rates that must be maintained under the Act, with its restrictions against the greater charge for the shorter haul and against all unjust discriminations and undue preference and advantage to persons and localities. When those rates were in effect a greater charge was made from Canadian points east of Port Huron to Buffalo than from Port Huron.

The respondent concedes that this is against the letter and the spirit of the Act to regulate commerce, and claims that it was justified in making some advance at Port Huron to bring rates on its line generally in conformity to the Act.

Advances induced by this consideration and made only to a just extent, at points where disproportionately low rates had existed, rest on a reasonable basis. So far as this rule was observed by the respondent it furnished no just ground for complaint.

Upon the case as presented the Commission is not satisfied that an eight-cent rate on grain and grain products from Port Huron to Buffalo is unreasonable, nor is it satisfied that a higher rate than eight cents on grain and grain products is reasonable and just.

Grain and grain products are in the same class, and the rates on both are equal from Chicago to Port Huron. At Port Huron a distinction has been made in the rates, grain being two cents a hundred pounds lower than grain products. The only reason assigned for this difference is that there exists water competition in the carriage of grain from Port Huron and not to any great extent in the carriage of grain products. If the water competition were in fact controlling in respect to the rate it might justify the difference. But that

was not made to appear and similar competition by water exists from Chicago. Why it should be more effective from Port Huron than from Chicago was not shown.

The petitioners insist and ask a ruling by the Commission that it is unlawful to charge different rates on property in the same class. Prima facie, property classified alike would seem to be entitled to the same rate, but the point is one that need not now be determined. Upon the showing in the case the articles in question are embraced in the same class, and are carried at equal rates from Chicago, and no adequate reason having been shown for a difference at Port Huron it would seem that equal rates should prevail from the latter place.

It is not deemed necessary in this case to discuss the relation of the Port Huron rates to the Detroit and Toledo rates. That has been done in another case (Detroit Board of Trade v. Grand Trunk Railway, 2 I. C. C. R. 315), and the same principle has been considered in other cases. The reasons for not disturbing a rate not essentially unjust, that affects several lines of road and many interests in a large territory, that has been established to put competing localities on a substantial equality and to prevent rate wars, have been fully set forth in other cases and need not be repeated. If the Port Huron local rate were clearly unreasonable, and resulted in injustice to the business interests of that city, those considerations would be inoperative to prevent such action respecting them as might appear to be appropriate. But that is not the case. The evidence does not show that any material injury results to the business interests of Port Huron from an eight-cent rate to Buffalo. In fact, it appears affirmatively that the competition from Chicago with grain products from Port Huron is very slight and unimportant.

The decision of the Commission is that an eight-cent rate per hundred pounds upon grain and grain products from Port Huron to Buffalo, while a fifteen-cent through rate from Chicago to Buffalo is in effect, is not unreasonable, and that a rate from Port Huron to Buffalo in excess of eight cents per hundred pounds while such through rate from Chicago is maintained, is unreasonable.

THE OREGON SHORT LINE RAILWAY CO. v. THE NORTHERN PACIFIC RAILROAD CO.

Filed November 12, 1889.

Under the rules of practice issued by this Commission a replication to an answer is not required or allowed.

MEMORANDUM.

BY THE COMMISSION:

In this case after the answer to the complaint was filed, the complainant asked leave to file a replication. The Rules of Practice in this Commission not only do not provide for a replication to the answer, but in effect, though not in terms, exclude it. Rule IV provides for an answer, unless the respondent sets the case for hearing on the complaint under Rule V, which provides as follows: "If a carrier complained against shall deem the complaint insufficient to show a breach of legal duty, it may, instead of filing an answer, serve on the complainant notice for a hearing of the case on complaint." But when an answer is filed the Rules contemplate that the issue is thereby joined. The language of Rule XI is this: "Upon issue being joined by the service of answer, the Commission will assign a time and place for hearing the same." And, again, in XII: "When a cause is at issue on petition and answer, each party may proceed at once to take depositions," &c. The omission to provide for a replication to the answer was not an oversight when the Rules of Practice were drafted and adopted. The view of the Commission then was to simplify the practice as much as practicable. Experience since has not developed any necessity for change in the respect under consideration. Both the letter and the spirit of the statute excludes the idea of technicality in its administration. The complaint and answer are sufficient to indicate the substantial controversy. Evidence is admitted with liberality to