ings therefore do not afford a sufficient basis for an order to effect the desired equalization of the transit charges and the complaints will be dismissed without prejudice.

HALL, Commissioner, dissenting:

By the majority report the Commission for the third time in these cases finds that on the traffic in issue, Montana grain milled in transit and the flour product moving to specified eastern and western ratebreaking terminals, of which Minneapolis and Seattle are representative, neither the transit charge of 2 cents at Great Falls, nor the aggregate charge consisting of the freight rate plus the transit charge, has been shown to be unjust, unreasonable or unduly prejudicial. It follows that, as found in the original report, 41 I. C. C., 29, the complaints should be dismissed, and to this extent I agree with the majority report.

But in the second report, 47 I. C. C., 263, at 266, the majority called attention to traffic not in issue, as to which pleadings and record were barren and necessary parties not before it, and declared that in shipping the product of Montana grain to points east of Chicago, complainant was at a disadvantage, of which it had not complained, as compared with terminal millers at Minneapolis, for example. It accordingly offered three suggestions as to how this disadvantage could be removed, but made no order. These suggestions are recited in the proposed report of the examiner incorporated in the present majority report. Nothing was said about traffic to points beyond the western terminals.

Following this report the Great Northern, sole defendant in No. 7893, traffic to eastern terminals, but joined with one of its subsidiaries and the Spokane, Portland, and Seattle as defendants in No. 7894, traffic to western terminals, asked further hearing for the following purposes, among others, as stated in its petition therefor: (1) in order that all carriers interested might be made parties; (2) in order that the Commission might make such investigation as may be necessary to determine propriety of the application of the transit charge on all Montana grain, and not merely on grain milled at Great Falls; (5) for such evidence as may be relevant to

the issues raised by the majority report.

The petition was granted and further hearing had in April, 1918. No other carriers were made parties; no investigation was ordered by the Commission; no change was made in the pleadings. Representatives of two other carriers, the Northern Pacific and the Milwaukee, which also serve milling points in Montana and collect the 2-cent transit charge at those points, were present at the hearing, but, as then stated by defendant's attorney, were not in position to

enter appearance or offer any evidence on account of the state of the record. The presiding examiner ruled in effect that the suggestions made by the majority in the second report had no reference to westbound traffic, and intimated that evidence as to milling points other than Great Falls would doubtless be included in the general investigation and need not be introduced at the hearing in these cases. The hearing proceeded accordingly along restricted lines, and practically no evidence was introduced relevant to the "issues raised by the majority report."

After the hearing and before the argument complainant tendered motion and supplemental complaint bringing in the Director General as a party defendant. Here again the issues were not enlarged, the complainant renewing its previous complaints in all particulars, showing that there had been no material change affecting the merits except that the freight rates set forth in said complaint, i. e., the rates on traffic from Montana points to eastern and western terminals, but not beyond, had been increased under General Order No. 28, of the Director General without change in the transit charges complained of, and stating that complainant's causes of action against the Director General were the same as alleged in the previous complaints against the Great Northern.

To this supplemental complaint the Director General answered, appearing by counsel who was not present at the argument. His answer was similar to that recited in the Willamette Valley Case, 51 I. C. C., 250, and concludes as follows:

He does not demand further hearing of evidence in this case, and consents that, in so far as it is relevant, the evidence heretofore submitted may be considered by the Commission in determining the questions now properly at issue. And having fully answered he prays that the originial petition and supplemental petition may be dismissed. (The italics are mine.)

Counsel for the defendant Great Northern apparently conceded on the reargument that the bringing in of the Director General as a party defendant had in effect brought in the carriers participating in rates beyond the terminals, and the majority report seems to rest in part upon that assumption. I am constrained to the view that the Director General was brought in only to meet the issues presented by the pleadings and the evidence relevant thereto. It does not appear that he had notice of the "issues," if they may be called such, raised for the first time by the second report in these proceedings, 47 I. C. C., 263, as to traffic for beyond the terminals, or that any material evidence relevant to that "issue" was introduced at the hearing.

The reasonable transit charge of 2 cents applied at Great Falls is carried in a tariff rule which is general in terms and applicable on Montana wheat at all milling points in or out of Montana

on the line of the Great Northern on traffic to Minneapolis or destinations intermediate thereto. Similar rules are carried by competing carriers serving Montana points. It is not claimed by anyone that these competing carriers have been made parties defendant or are here represented by the Director General. There are now from 60 to 80 mills in Montana alone. No issue and no evidence as to unreasonableness or undue prejudice in application of the 2-cent transit charge at these other milling points, whether on defendant's line or the lines of its competitors, is before us. One mill is complainant, one carrier defendant, one application of the transit charge, viz, at Great Falls, is under attack. When the complaint was filed complainant had the only mill there. Now there is one more, a total of 2 out of over 60 in the state, to say nothing of those between Montana and the twin cities. All the others pay the 2-cent transit charge. I can not escape the conviction that the conclusions of the majority, if they are sound, should rest upon a record which will support them.

The majority report apparently proceeds upon the theory that it is a proper function of the Commission substantially to equalize the transportation expense of the intermediate miller with that of the terminal miller in order, as was said in the second report, that the milling industry will not "be unduly concentrated at more or less arbitrarily selected points." In speaking of the act to regulate commerce, the Supreme Court said in Interstate Com. Comm. v. Diffenbaugh, 222 U. S., 42, 46: "The law does not attempt to equalize fortune, opportunities, or abilities." We have frequently held that we are without power to equalize natural or commercial disadvantages. Import and Domestic Rates-Clay, 39 I. C. C., 132, 135 and cases cited; Douglas & Co. v. Illinois Central R. R. Co., 31 I. C. C., 587, 595; Empson Packing Co. v. C. M. Ry. Co., 22 I. C. C., 268, 270. In Investigation of Alleged Unreasonable Rates on Meats, 22 I. C. C., 160, 163, we said that "it is no part of our duty to so adjust rates that business will or will not be done at a particular point," and in Baltimore Chamber of Commerce v. B. & O. R. R. Co., 22 I. C. C., 596, 603, cited with approval in Board of Trade of Kansas City v. St. L. & S. F. R. R. Co., 32 I. C. C., 297, 311:

It is not within the power of this Commission to equalize economic conditions, or to place one market in a position to compete on equal terms with another market as against natural advantages.

I agree with the majority that the record will not support an order. Our conclusions draw force and virtue from the fact that they are reached after full hearing and no conclusion, particularly in a matter of the complexity of transit on grain, should be announced except upon an adequate record in a case in which the question and the necessary parties are properly before us.

No. 9788.

CLEVELAND LUMBER COMPANY

v.

ALABAMA CENTRAL RAILROAD COMPANY ET AL.

Submitted December 11, 1918. Decided January 21, 1919.

Rates on lumber in carloads from Patton Switch, Sunlight, and Ford Switch, Ala., to interstate destinations found to be unduly prejudicial.to the extent that they exceed the rates contemporaneously maintained from Manchester, Ala.

W. F. Finch for complainant.

M. P. Callaway for Illinois Central Railroad Company, Southern Railway Company and others; and L. C. Britton for Alabama Central Railroad Company.

R. Walton Moore for Director General of Railroads.

REPORT OF THE COMMISSION.

DIVISION 2, COMMISSIONERS CLARK, DANIELS, AND WOOLLEY.

The Alabama Central Railroad is 12.9 miles in length and extends north from Jasper, Ala., where it connects with the Illinois Central Railroad, the St. Louis & San Francisco Railroad, and the Northern Alabama Railway, the last-named carrier being part of the Southern Railway system. A considerable quantity of lumber is shipped from Manchester, Ala., 6 miles north of Jasper, and from other stations on the Alabama Central as far as and including Ford Switch, Ala., its terminus. The part of the line beyond Manchester is a logging road owned by the Manchester Saw Mills, a corporation which hauls logs with its own equipment over these tracks to Manchester, where they are converted into lumber. This portion of the line is used by the Alabama Central under lease, without other rental than the cost of maintenance. The Alabama Central transports lumber as a common carrier in interstate commerce from Manchester and points north thereof and operates both freight and passenger trains between Jasper and Ford Switch. There is a question as to the right of the Alabama Central to transport pine lumber as a common carrier from points north of Manchester. Its contract with the sawmills company provides that it shall not do so, and the supreme court of Alabama recently refused to sustain an order of the public service commission of that state requiring the

Alabama Central to lay a sidetrack at a sawmill north of Manchester, on the ground that the railroad company has no right under the contract to use the property of the sawmills company for purposes not specified in the contract.

The present interstate rates on lumber from Manchester are on the Jasper basis, no charge in addition to the rates from main-line points being imposed. From Patton Switch, Sunlight, and Ford Switch, all located north of Manchester, no joint through rates are now published, the lowest rates available being those made by combination on Manchester, the local rate from all of these points to Manchester being 2 cents per 100 pounds. The complainant, the Cleveland Lumber Company, ships large quantities of lumber from Patton Switch, Sunlight, and Ford Switch and competes with the Manchester Saw Mills, located at Manchester. It alleges that the rates from these three stations to interstate destinations, particularly to the territory north of the Ohio River and west of the Mississippi River, are unreasonable and unduly prejudicial, and reparation is asked on certain shipments. The allegation of unreasonableness was withdrawn at the hearing, as was also the prayer for reparation, leaving for determination only the question whether the maintenance of lower rates from Manchester than from Patton Switch, Sunlight, and Ford Switch subjects the complainant to undue prejudice.

The only witnesses testifying for defendants at the hearing represented the Illinois Central and the Northern Alabama. When questioned as to the reason for extending the main-line basis of rates to Manchester they could only say that it was done by the St. Louis & San Francisco Railroad and that they were not advised as to the reason. This carrier, which, according to the evidence makes and controls the rates from this territory to points north and west, was not represented at the hearing. The Alabama Central introduced no witnesses, giving as the reason its uncertainty as to its rights under the contract with the Manchester Saw Mills, that matter not having been determined at the time of the hearing. In a letter to the Commission before the hearing the general freight agent of this carrier expressed his willingness to satisfy the complaint if the trunk lines would accord his company a division of 2 cents per 100 pounds in addition to an arbitrary of one-half cent to which the complainant is said to have agreed at that time. The Alabama Central now receives an allowance of 14 cents in addition to the local rate of 2 cents.

The two carriers directly responsible for the rate adjustment having failed or refused to submit evidence, the Illinois Central and the Northern Alabama, whose revenues might be affected by a