more than twenty dollars was involved, we could award no reparation in consequence of the provisions of the seventh amendment to the Constitution of the United States. The amendment of the statute of March 2, 1889, was made to cover this feature of the statute, but the amendment expressly provides that it shall have no reference to proceedings pending at the time the amendment was adopted; and this proceeding was pending at that time. The amendment to this effect is found in the proviso in section 22 of the statute as amended, and is in the following language: "Provided that no pending litigation shall in any way be affected by this Act." The statute, therefore, leaves the petitioner to enforce his claim for reparation in the courts as he may be advised, and accordingly this petition is dismissed without prejudice. FREDERICK A. WHITE v. THE MICHIGAN CENTRAL RAILROAD COMPANY AND THE LAKE SHORE AND MICHIGAN SOUTHERN RAILWAY COMPANY. Heard at Chicago September 30, 1889. Decided December 1, 1889. When a complaint charged that the respondent railroad companies, which were common carriers subject to the Act to regulate commerce, were accustomed to make deductions of from five to ten pounds of wheat per load from the true weight when delivered by the farmer to the buyer at the elevators of the respondents, and gave receipt to the farmer for the amount as thus diminished, upon which the latter was paid by the buyer, thereby suffering a loss to the extent of such reduction, but failed to charge that the wheat was delivered for interstate transportation, or, indeed, for transportation anywhere, it was Held, that the complaint was insufficient in substance to show violation of the Act to regulate commerce, and that the respondents were entitled to have it dismissed on their motions to that effect, but that the dismissal should be without prejudice. An averment that the respondents were interstate commerce carriers subject to the Act to regulate commerce was not of itself sufficient to warrant an inference under a motion to dismiss a complaint for insufficiency, that wheat delivered at an elevator of the respondents was for interstate commerce. This case was heard solely upon the respondents' motions to dismiss the complaint for insufficiency of its allegations to show violations of the Act to regulate commerce, but the complainant having filed some depositions taken before the hearing of said motions, the Commission looked into this evidence with a view of seeing what light it shed upon the general claim of unlawful practice by the respondents, and upon the duty of the Commission to proceed against them on its own motion. George S. Clapp, for the complainant. Ashley Pond, for the Mich. Central R. R. Co. REPORT AND OPINION OF THE COMMISSION. VEAZEY, Commissioner : The complainant filed an amended complaint in which he charged that he is a farmer engaged in the business, among other things, of raising and selling wheat and grain; that the respondents are common carriers engaged in the transportation of passengers and property by railroad between points. in the States of Indiana and Michigan and other States farther east, and as such common carriers are subject to the Act to regulate commerce; that they have elevators for the receipt and storage of wheat at their several railroad stations, the Michigan Central Railroad Company at Buchanan and Dayton, Michigan, and the Lake Shore and Michigan Southern at Plainfield and New Carlisle in the County of St. Joseph and State of Indiana, at which elevators of said companies in said places the complainant has taken and delivered to said companies different loads of wheat within the last five years; that the respondent companies have, both of them, a custom in respect to the receipt of wheat into their respective elevators, which the complainant is advised is illegal, to wit: That the companies do not deal with farmers in storing wheat for shipment, that they contract with the shippers who purchase from the farmer their wheat, that the shipper gives the farmer a ticket in the nature of an order to the railroad company to receive the wheat, that the company then receives the wheat and gives to the holder of the ticket its receipt for the weight of the wheat, and the farmer takes the ticket and receipt to the buyer and gets his pay, but that from each and every load of wheat which the Michigan Central Railroad Company receives into its elevators it retains five pounds of wheat and gives its receipt for the weight of the load less such five pounds, that the custom of the Lake Shore & Michigan Southern Railroad Company is to deduct from each load not more than ten pounds but at least five pounds on each load, that if the odd pounds are more than five it deducts not to exceed ten pounds and retains such excess, giving its receipt to the farmer for the weight, less the amount so detained; that both the respondent companies have taken these deductions from the complainant within the last five years, and that they insist on the right to so deduct from each load of the complainant and all other farmers depositing wheat in their elevators on their roads. That in the fall of 1884 the complainant delivered to the Michigan Central Company, at its elevator in Dayton, Mich igan, forty loads of wheat, and that in every instance said company deducted five pounds, giving the complainant a ticket for the weight of the wheat less such five pounds; and that the value of the wheat so deducted was about the sum of three and one-third dollars. Complainant prayed that the Commission require the respondent companies to refund and pay the complainant for the value of the wheat so retained by each company, respectively, within the last six years; also that the Commission require the respondent railroad companies to cease and desist from such practice and custom of converting wheat stored in their elevators, and that in the future they give credit to the depositor of wheat in their elevators for the actual amount of wheat received and stored by them; and further prayed for general relief under the Act to regulate commerce. The respondent the Lake Shore & Michigan Southern Railway Company made answer denying that any of the acts complained of in the petition, or the custom therein alleged, were or are in violation of the provisions of the Act to regulate commerce, and denying the jurisdiction of the Commission upon the facts stated in the complaint; and, second, averring that the amount of wheat deducted from actual weight alleged in the petition, is barely sufficient to indemnify the railroad company against loss by shrinkage in the wheat stored and unavoidable waste in the handling of the wheat, and that the custom of making such reduction is reasonable and just for that reason, as well as for the further reason that wheat is received at said elevators and stored by the railroad company, and a certificate is given of the weight, for the benefit. and advantage of the party delivering the same, without charge by the company or cost to the party, other than the said slight deduction from actual weight when received. The original complaint was filed May 27th, 1889, and was duly served on the respondents. Said answer of the Lake Shore & Michigan Southern Company was filed July 5th, 1889. On the 14th of June, 1889, the Michigan Central Company, instead of filing answer, served notice, under Rule V of the Rules of Practice, for a hearing of the case on the complaint. Subsequently, on July 31st, 1889, the complainant moved for leave to file an amended complaint, charging the respondents as interstate common carriers. On August 11th, 1889, the Commission ordered said application, for filing an amended complaint, to be filed, and that the same be heard and disposed of at the same time that the original complaint should be heard and determined, upon said notice of the Michigan Central Company. The complainant proceeded to take testimony by deposition in advance of the hearing, under Rule XII of the Rules of Practice. When the case came on for hearing, pursuant to assignment, on September 30th, 1889, no objection was made to the filing of the amended complaint, but said notice of the Michigan Central Company for hearing on the complaint was, without objection, treated as having been renewed as to the amended complaint, and at the same time the Lake Shore & Michigan Southern Company moved to dismiss the complaint for insufficiency, pursuant to the provision of Rule V when an answer has been filed. Rule V provides that, when notice is served for hearing of the case upon the complaint, the facts stated therein will be taken as admitted. The case was heard on said motions of the respondents, they having taken no testimony. After arguments the counsel of the complainant stated that he did not wish to file further testimony, and counsel for respondents that they had no testimony to offer, until the motions to dismiss were disposed of. The case therefore stands for decision upon the sufficiency of the complaint, taking the facts therein charged to be true. It is entirely plain that the complaint fails to state that any wheat was delivered to either of the respondent companies by the complainant or others, at any of the railroad elevators, or was received or stored, for interstate transportation. This, in fact, is so plain there is no room for discussion as to its proper interpretation. It is urged in reply in behalf of the complainant that, when it is charged in general terms in a complaint that the respondents are engaged in the trans |