Second. Because the performance of this service gives to the Grand Rapids dealers an undue and unreasonable preference and advantage.

Third. Because the respondent exacts a greater compensation for the transportation of a like kind of property from Eastern cities to Ionia-a shorter distance than from the same cities to Grand Rapids-a longer distance over the same line and in the same direction, the shorter being included in the longer distance and the circumstances of carriage being substantially similar.

This is the complaint; and as thus summarized it presents allegations of three distinct violations of law, all shown by the same state of facts. If either one of them is well founded the complaint must be sustained.

It may be further stated at the outset that it is wholly immaterial to the legal questions now raised that the business at the two towns is now done just as it was done for many years before the Act to regulate commerce was enacted. If what has been and is now done works an unjust discrimination, or is in any particular obnoxious to the general spirit and intent of the Act, it is an abuse, and we may assume that it was one of the very abuses which were within the contemplation of Congress when the Act was passed and which were meant to be corrected. But whether specially in contemplation or not, if it would be illegal as a new practice, it is equally so as an old practice; time might habituate the people to it and induce acquiescence, but could never, as against the express provisions of the statute compel submission.

It is still further to be said that the fact that Ionia is a small town and its dealers scarcely come at all into competition with the dealers of Grand Rapids is no answer to the complaint made. On a question of unjust discrimination the fact of competition may be properly considered, for all the circumstances of situation ought to be known to enable the proper judgment to be formed; but it may happen that as between a large town and a small the reason why there is no

competition is because the more favorable rates to the former have built it up and kept the latter in a condition of subordination and dependence. It would be difficult to conceive of discrimination more unjust than that which has such a blighting effect; and the wrong would be emphasized and aggravated if the very helplessness which the injustice has begotten could in law be an answer to any complaint for redress. What was said by the Commission in Martin v. Chicago, B. & Q. R. Co., 2 I. C. C. Rep. 25, is applicable here, and we see no occasion to depart from the views there expressed. If the interests of the two towns were entirely distinct and non-competitive, there might still be unjust discrimination in giving to the one more favorable rates than to the other, and if the complaint in that particular were not sustained, the question of violation of the long and short haul clause of the Act would remain. Upon that question the fact of competition would have at the best very remote if any influence.

Coming then directly to the principal questions raised, we may first inquire whether what is done by the respondent at Grand Rapids is equivalent to the payment of a rebate to shippers.

It is contended by the defense that the cartage is merely a terminal expense-an expense imposed upon the respondent because the situation of its warehouse is so remote from the business part of Grand Rapids that it would otherwise be excluded from the business by its competitors.

It must be conceded, however, that cartage is not in general a terminal expense, and is not in general assumed by the carrier. The transportation as between the carrier and its patrons ends when the freights are received at the warehouse, and the charge made is for a service which ends there. This is the rule; and if the distance of the warehouse from the center of business of a city creates an exception in any case, so as to make the consignee's place of business the end of transportation, no one has undertaken to indicate to us the distance upon which the exception would depend. The distance in this case is a mile and a half; but if it were

but half that distance, it would still be open to the carrier to say that the case was exceptional, and upon that ground to assume the payment for cartage if its interest would apparently be subserved thereby. Of course the cost is made a terminal expense by the mere fact of assumption, but it does not follow that as between the carrier and its patrons at another point it is properly such.

The effect of the respondent doing the cartage at its own cost of two cents per hundred pounds is precisely the same that it would be if all its rates to Grand Rapids were made two cents a hundred pounds less and the consignees were left to pay the cost of cartage. But if that were done the Ionia rates would clearly be illegal, because they would be two cents a hundred pounds more than the Grand Rapids rates. If, then, the argument for the respondent is sound, the same thing in substance and effect may be legal to be done in one way and illegal when done in another; the form will determine its lawfulness and not its substance. So if the rates to the two towns were made the same, but the Grand Rapids consignees were allowed a rebate of two cents a hundred because of their greater distance from the railroad warehouse, the illegality would seem to be equally obvious. But this would differ from the present arrangement in form only, not at all in substance.

The difficulty with respondent's position springs from the fact that Ionia and Grand Rapids are grouped, and the same rates nominally given to both. It is not competent to give to Grand Rapids the lesser rates on consignments from eastern points, for it is not claimed that the transportation to the one town is made under circumstances and conditions substantially different from those under which it is made to the other. The only difference apparent is in this very matter of cartage, and that is a matter not ordinarily included in the transportation at all, and if included it appears by the agreed facts to be no more expense at the one town than at the other. When therefore the respondent is itself at the cost of the cartage at Grand Rapids and not at Ionia, it does in effect make to consignees at Ionia a charge which is greater upon the shorter haul than is made to those at Grand

Rapids upon the longer haul, and no attempt is made to justify it under the law by making proof of dissimilar circumstances and conditions. The respondent for the charge it makes to consignees at Grand Rapids performs a service additional to that which is performed to consignees at Ionia -a service the value and cost of which is two cents a hundred pounds-and reduces the charge made at Grand Rapids for the service performed for consignees at Ionia by that much.

It follows that the long and short haul clause of the fourth section of the Act to regulate commerce is violated, and consignees at Ionia are overcharged to the extent indicated. The complaint will be sustained on that ground and order will be entered accordingly without expressly passing upon other points raised.

Commissioners MORRISON and SCHOONMAKER concur in the foregoing report and opinion, with the addition thereto that the free-cartage service rendered by the respondent at Grand Rapids is unlawful on the further ground that it is in effect a device for receiving less than the established tariff rate to and from that point. Conceding that it works no discrimination between shippers and consignees at Grand Rapids who are patrons of the respondent, it nevertheless serves as a rebate or it can have no value at all. It compels competing carriers to meet it by a reduction of rate or to perform a like service.

The purpose of the Act is to be gathered from all its provisions. It is provided in the sixth section that when a common carrier shall have established and published its rates, fares and charges, it shall be unlawful for it to charge or receive a greater or less compensation for the transportation of persons or property, or for any service in connection therewith, than is specified in such published schedule. Nominally receiving a full rate with one hand and paying part of it back with the other, either in money or its equivalent in service, is plainly, whether so intended or not, a device that works an evasion of the law, and continues a practice that is now unlawful. The fact that the practice

existed prior to the law, and was in use to some extent by other carriers, does not aid its lawfulness. It never was general, but at most only an exceptional practice, and its lawfulness is to be determined not by former or even present use, but by the provisions of the Act. The nature of the device is tested by its practical results upon competitors, above stated. The cartage service is a service in connection with the transportation, and is in effect an indirect rebate from the rate to the extent of the value of the cartage. It results in the carrier getting less than its tariff rate for its service, and is therefore unlawful.

The order of the Commission is that the respondent within thirty days from the service of a copy of this report and opinion cease and desist from the violation of law found in the report and consisting in furnishing free cartage to and from its station at Grand Rapids, Michigan, for freight carried on its road.

Commissioner VEAZEY takes no part in the decision, not having sat in the case.

DISSENTING REPORT AND OPINION.

BRAGG, Commissioner:

I am unable to agree to the finding of facts and conclusions reached by the majority of the Commission in this proceeding. After this case had been argued upon the evidence set forth in an agreed statement of facts as shown in the report and opinion of the majority of the Commission, it was deemed desirable, on account of the importance of the various questions presented that it should be argued again, and this was done. At the second hearing some further facts were developed not in the agreed statement of facts, and about which there was no dispute. These facts were that the defendant and its rival competitors, the Michigan Central Railroad Company and the Detroit, Lansing & Northern Railroad Company, had each made free delivery and receipt of freight from and to their respective depots to consignees