cede a cutting for clearing the land for cultivation, and deny it for other purposes. At what time shall we date the preparation for cultivation and make the right to sell the timber depend? Must the axe immediately precede the plow and do no more than keep out of its way? And if that close relation be not always maintained, may the purpose of an allottee be questioned and referred to some advantage other than the cultivation of the land, and his title or that of his vendee to the timber be denied? Nor does the argument which makes the occupation of the land a test of the title to the timber seem to us more adequate to justify the qualification of the Indians' rights. Interstate Commerce Commission-powers- carriers in the freight rate upon a particu- It is based upon the necessity of superintending the weakness of the Indians and protecting them from imposition. The argument proves too much. If the provision against alienation of the land be extended to timber cut for purposes other than the cultivation of the land it would extend to timber cut for the purpose of cultivation. What is there in the former purpose to protect from imposition that there is not in the other? Shall we say such evil was contemplated and considered as counterbalanced by benefit? And what was the benefit? The allotments, as we have said, were to be of arable lands useless, may be, certainly improved by being clear of their tim-committed.* ber, and yet, it is insisted that this improvement may not be made, though it have the additional inducement of providing means Argued April 22, 23, 1907. Decided May 27, for the support of the Indians and their families. We are unable to assent to this view. Judgment affirmed. 5. Findings of fact made by the Interstate Commerce Commission, when conbe disturbed unless the record establishes curred in by a Federal circuit court, will not that clear and unmistakable error has been [No. 588.] 1907. APPEAL from the Circuit Court of the United States for the Eastern District of Louisiana to review a decree enforcing an order of the Interstate Commerce Commis Mr. Justice Moody took no part in the de- sion requiring carriers to desist from char cision of this case. ILLINOIS CENTRAL RAILROAD COM- V. ging an increased freight rate on lumber. Affirmed. Statement by Mr. Justice McKenna: This case involves the validity of an order of the Interstate Commerce Commission requiring the appellants "to cease and desist on or before the 1st day of April, 1905, from further maintaining or enforcing the INTERSTATE COMMERCE COMMISSION. unlawful advance of 2 cents per 100 pounds, Appeal-harmless error. or the said unlawful rates resulting therefrom, for the transportation of lumber from shipping points on defendants' respective lines in the state of Louisiana east of the Mississippi river, and in the states of Mississippi and Alabama to Cincinnati, Louisville, Evansville, Cairo, and other points on the Ohio river commonly called and known as Ohio river points." The order was made in the matter of the complaint filed with the Commission by the Central Yellow Pine Association, an incorporated association composed of persons, firms, *Ed. Note.-For cases in point, see vol. 10, Cent. Dig. Commerce, § 148. and corporations engaged in the business of, mingled somewhat with legal arguments, manufacturing yellow pine lumber in the but the following may be selected as im states of Mississippi, Alabama, and that portant and pertinent to the questions which part of Louisiana east of the Mississippi the controversy presents: river. The complaint charged that the appellants were common carriers by rail, engaged in interstate commerce, and as such were engaged in the transportation of yellow pine lumber from the mills and lumber plants of the members of the Yellow Pine Lumber Association to the territory known as the "Central Freight Association territory," which lies on the north of the Ohio river and on and between the Mississippi river on the west and a line running through Buffalo and Pittsburg on the east, and that the members of the association are dependent upon appellants for the transportation of their lumber to the markets of the country; that the appellants and the railways carrying yellow pine lumber to the same markets from the territory west of the Mississippi river, embracing the states of Texas, Arkansas, and that part of Louisiana west of the river, by agreement or concert of action advanced the rate on yellow pine lumber from the territories both east and west of the Mississippi river on and beyond the Ohio river in Central Freight Association territory 2 cents per 100 pounds. The advance was made applicable south of the Ohio river and effective on and from April 15, 1903, except as to the Louisville & Nashville road, as to which it became effective June 22, 1903. And it was alleged that such advance was "unjust, unreasonable, as well as discriminative, in violation of the act to regulate commerce." The answer of the railways admitted the advance, but denied that it had the character and effect charged, but alleged that, on the contrary, it was reasonable and just and not in violation of law. The answers also specifically justified the advance by the conditions of the market and the traffic, including competition, and the costs of operating the roads. Testimony was taken on the issues thus formed. The Commission sustained the complaint and made the order recited above. 10 In ters. Com. Rep. 505. The railways refused to obey. The Commission then instituted this proceeding in the circuit court of the United States for the eastern district of Louisiana, where further proof was taken and a decree rendered which affirmed the order of the Commission and made it the order of the court. The roads were also enjoined from further disobedience to the order. No opinion was filed. The testimony was voluminous, and the report and findings of the Commission are very long. They are reported in 10 Inters. Com. Rep. 505, supra. The conclusions of the Commission are The lumber-producing districts are divided in territory (1) west of the Mississippi river; (2) territory east of the river; and (3) southeastern territory, composed of the states of Georgia, Florida, and part of Alabama. The lumber of each of these districts competes in the sale of their products in "Central Freight Association territory." The roads of the appellants are located in and serve the second of these territories. The advance in rates was made as well in territory west of the Mississippi river, "and was made, in fact, though not expressly, by agreement between the defendants (appellants) and the roads west of the river," after several meetings, at a consultation between the representatives of the roads. The roads east of the river took the initiative. At Cairo traffic from a large portion of the lumber-producing districts meets or converges en route to destination. The rates on other Ohio river crossings are based on Cairo; that is, they bear a fixed relation to the Cairo rate, being advanced or reduced as that rate is advanced or reduced. The through rates to points beyond the Ohio river in Central Freight Association territory are made up of the full local rates of the roads north of the Ohio as the proportions of those roads. Whatever is left of the through rates are the proportions of the roads south of the Ohio. The rates to interior points north of the Ohio are made on the lowest combination rates to the Ohio plus the rates beyond, and are blanket rates, being the same from all shipping points or points of production to the same destination. The rates to the Ohio are to the north bank and include the bridge tolls. There are divisions of rates south of the Ohio between what are termed the "originating" roads, on which the lumber is principally manufactured, and the roads intermediate between them and the river. There had been, from time to time, changes or fluctuations in the rate. Prior to 1894 the roads west of the Mississippi claimed and were allowed a differential of 2 cents. This placed at a disadvantage the shippers east of the Mississippi, and a readjustment of rates was made, and on May 1, 1894, the rate to Cairo from east of the Mississippi was reduced to 13 cents per 100 pounds, the rate in force from west of the Mississippi. This rate remained until September 9, 1899, about five years, when it was advanced to 14 cents, and so remained until April 15, 1903, nearly four years, when the advance of 2 cents complained of was I have resulted in a constant increase in net made. The railroads west of the Mississippi make a certain allowance to the mills which have "logging roads," that is, roads by which logs are hauled from the timber to the mills. This is called "tap line allowance or division." It ranges 1 to 2 cents per 100 pounds, up to as high as 6 cents, and varies, to some extent, according to the destination of the traffic. The mills east of the river have logging roads also, but appellants make no allowance to them. The only exception is the Mobile & Ohio road, which grants allowances to about four mills on its line. The New Orleans & Northeastern road put in a tap line allowance of 2 cents, but other roads east of the river objected, and it was withdrawn. There does not appear to be any reason for such allowance west of the Mississippi which does not apply east of that river, and it amounts to a rebate or reduction from the regularly published rate, and gives an advantage to the mills west of the Mississippi over those east, although the published rates from both are the same. The lumber business had grown from its inception and was largely and possibly more prosperous than it had been before, but the proof does not show that for two or three years preceding the advance the prices of mill products had materially increased or that the profits realized were unusual or excessively large. earnings. This is shown in the tables set forth in our findings of fact (finding 14).” Sufficient cause was not shown, either in the alleged profit in the lumber business or in the increased cost of operating the roads, for the advance in the rates on lumber. And, answering the contention that the former rate was not adequately remunerative, the Commission expressed the view that "reasonableness in this sense of a rate on a single article of traffic is one of almost insuperable difficulty." And further, that the value of the entire property of a road "can shed but little, if any, light upon the question." The rate on one article might reasonably or unreasonably be high and the total of rates be remunerative or otherwise: But, it was concluded, even if that be a mistaken view, it was impossible, with any degree of accuracy, to determine from the voluminous and conflicting testimony on the subject introduced in behalf of both parties what was the value of the property employed by the roads. The Commission thought that the elements to be considered in determining the reasonableness of an entire system of rates were "widely variant" from those to be considered in determining the reasonableness of a single rate, and expressed the elements upon which the latter depends to be "the value, volume, and other characteristics affecting the transportation of the particular commodity to which it is applied." The Commission referred to its As to the operating expense of the roads findings of facts as having "many things the Commission said: disclosed by the evidence" which bore directly upon the reasonableness of the particular rate in question, and which aided it in arriving at a correct judgment in respect thereto, saying that: ed action of the carriers. It is claimed by them that in advancing the rate they acted independently, each for itself, but the proof shows conclusively that the advance was the outcome of a concert of action and a previous understanding between the companies. Through their authorized official represent "The proof shows increases in wages and in prices of material and equipment, but not in a marked degree for the two years, 1901 and 1902, immediately preceding the advance rate. These increases have doubt- "In the first place, the present advanced less added materially to operating expenses, rate is the last (up to date) of a series of but the total annual increases in those ex-advances, and was made by joint or concertpenses are, of course, due only in part to the advances in wages and prices of supplies and equipment. They are attributable in a great measure to the constant growth or enlargement of the business of the roads. Not only has the lumber business of the roads greatly increased, but their business in general. The greater the volume of busi-atives they conferred with each other reness, the greater is the aggregate cost of conducting it; or, in other words, of operating the roads. The total operating exThe total operating expenses of the roads, as reported by them, have also been much enlarged by the inclusion therein of large expenditures for permanent improvements. "While the operating expenses of the defendants have constantly grown, the gross earnings from operation have also increased from year to year to such an extent as to peatedly as to the making of an advance; recognized the fact that, because of competition in common markets between the lumber-producing districts served by them, the advance should be from all those districts or none, and finally they all promulgated the advance, to take effect at exactly the same time for exactly the same amount. This concurrence of action was not only between the railway companies, parties defendant in this case, and in relation to the rates charged by them, but was participated in by the lumber-hauling | proportions of the former roads. If the roads serving the territories west as well as east of the Mississippi river." The 14-cent rate in force at the date of the advance had been maintained nearly four years, and a still lower rate, 13 cents, had been maintained for the preceding five years and four months. And the testimony of the officers of the roads was that there was a profit in both rates. The answer also admitted profit, but averred that lumber "was not an exceedingly profitable commodity." The Commission said: allowances to the originating roads are unreasonably large, as they appear to be from a distant standpoint, and result in unreasonably low proportions to the other roads, this cannot be remedied by an advance in the total through rates charged the public. It is the total rate, and not its proportions, which is in issue. "Although both the net and gross earnings of the defendants have grown from year to year, the percentages of what are reported by the defendants as 'operating increased (table, finding 14), and this is chargeable to operating expenses, but that expenditures for improvements and equipments should not "be taxed as part of the current or operating expenses of a single year, but should be, so far as practicable, and so far as rates exacted from the public are concerned, 'projected proportionately "No reason is given or shown why lum-expenses' to earnings have also somewhat ber should be singled out as a commodity upon which an 'exceedingly' large profit should be earned. A reasonable profit is all the defendants are entitled to, and the testimony is far from convincing us that the profit under the 14-cent rate was not reasonable or would not now be reasonable. As stated in our 'Findings of Facts,' the 14-cent rate appears to be reasonably high when compared with the rates on other com- And the Commission said repairs, whether modities which are at all analogous to lum-to improvement or equipment, were properly ber in respect to value, volume, and the various conditions affecting the service of transportation. During the period from 1894 to 1899, while the 13-cent rate was operative, there were large annual increases in the net earnings of the defendants, and the same was the case from 1899 to 1903, while the 14-cent rate was operative (find-over the future."" It was said further, if ing 15). During those periods there was also a large growth in the tonnage of lumber hauled by the defendants, and therefore their increases in net earnings were in part, at least, derived from the lumber traffic under those rates. Dividends have been declared during those periods, and in addition considerable surpluses have been reported (finding 16), and large sums have been invested in permanent improvements or betterments (finding 14)." such expenditures should be deducted from the annual operating expenses it would be found that the percentage of operating expenses to earnings had, in some instances, diminished, and in others increased, to no material extent. The tenth and eleventh conclusions are as follows: "10. The general rule is, the greater the tonnage of an article of traffic, the lower is the rate. No rule is more firmly grounded in reason or more universally recognized by carriers. It is because of the greater densi The seventh and eighth conclusions of the Commission we give entire, as follows: "The defendants, other than the originat-ty of traffic north of the Ohio river in Cening roads, complain of the small amount of tral Freight Association territory and in revenue or low rate per ton per mile realized eastern territory that rates in general are by them out of their proportions of the materially lower in those territories than through rates. This is due to the large al- in southern territory. The defendants have lowances out of the rates made to the made yellow pine lumber an exception to this originating roads. (See findings 3 and 4.) rule; while the tonnage in general of the Those allowances commenced under the low-defendants and lumber tonnage in particuer rates in force prior to the advance, and raise the presumption that those lower rates, minus the allowances, were then considered reasonably remunerative for the remainder of the hauls to the Ohio river crossings. As the 2 cents advance goes entirely to the roads continuing the transportation on to the Ohio and none of it to the originating roads, the inference is that advance was made solely with a view of increasing the lar have grown greatly, the lumber rate has not been lowered, but has been materially advanced. Moreover, the testimony is that a decrease in the rates on traffic in general has been going on throughout the United States since the improvements in transportation have been put in operation;' here, again, lumber has been taken from under, and deprived of the benefits of, the general rule. "11. As said in Marten v. Louisville & N. R. Co. 9 Inters. Com. Rep. 589, and shown by the proof in this case, lumber is an inexpensive freight and only a few other commodities furnish to carriers so large a tonnage.' The lumber business is constant, yielding the carriers revenue all the year; no special equipment is constructed or furnished for its carriage; it is loaded by the shipper and unloaded by the consignee, and where open cars are furnished, the shipper is required at considerable expense to equip them so as to protect the load and the train; there is small risk incident to its transportation, and, in case of accident, the damage is insignificant. For these reasons lumber should be given rates which are relatively low. "Our conclusion on the whole is that the advance, April 15, 1903, of 2 cents in the Cairo rate (with a corresponding increase in the rates to the other Ohio river crossings) was not warranted under all the facts in evidence, and that the resultant increased rate is unreasonable and unjust. An order will be issued in accordance with these views." Mr. Ed. Baxter for appellants. Messrs. L. A. Shaver, T. M. Miller, Marcellus Green, and Garner Wynn Green for appellee. Mr. Justice McKenna delivered the opinion of the court: Counsel for appellants in his oral argument made the declaration that it would not be necessary for this court to open the pages of testimony contained in the record, and says in his supplemental brief: L. ed. 309, 20 Sup. Ct. Rep. 209; East Tennessee, V. & G. R. Co. v. Interstate Commerce Commission, 181 U. S. 1, 27, 45 L. ed.. 719, 729, 21 Sup. Ct. Rep. 516. And, in any special case of conflicting evidence, a probative force must be attributed to the findingsof the Commission, which, in addition to "knowledge of conditions, of environment, and of transportation relations," has had the witnesses before it and has been able to judge of them and their manner of testifying. In the case at bar these considerations are reinforced by a concurrent judgment of the circuit court. The question is one of the reasonableness of a rate, and such a question was said to be one of fact in Texas & P. R. Co. v. Interstate Commerce Commission, 162 U. S. 197, 40 L. ed. 940, 5 Inters. Com. Rep. 405, 16 Sup. Ct. Rep. 666; Cincinnati, N. O. & T. P. R. Co. v. Interstate Commerce Commission, 162 U. S. 184, 40 L. ed. 935, 5 Inters. Com. Rep. 391, 16 Sup. Ct. Rep. 700. In these cases, however, it was declared that the conclusions of the Commission are subject to review if it excluded "facts and circumstances that ought to have been considered." Upon this declaration appellants rely, and justify their invocation that this court express and enforce the principles of transportation which, they contend, the Commission disregarded; and appellants venture the observation that unless this be done "there will be no settled principles of law for the guidance of either the Commission or of the courts," and that "the interstate railroad companies will be the only persons in this country who will not be able to obtain the opinion of the courts upon questions of law which vitally affect their interest." We think the apprehension is groundless and is demonstrated to be groundless by the cases cited. In all of them legal propositions were reviewed as elements in the inquiry of the reasonableness of a rate. Those cases, however, are "I do not insist that this court shall read the voluminous testimony contained in these records, but I do most respectfully ask it to lay down the rules or principles of transportation law which are fairly involved in the just determination of these cases, and to remand them to the Commission, to be re-in marked contrast to the pending case. It examined upon the testimony in conformity with the principles of transportation law to be announced by this court." will be observed that in them the instances were very simple. There was a salient circumstance in each of them about which To what, then, shall we resort? How there was no uncertainty. In other words, shall we determine what "principles of it was unconfused by dispute and was not transportation law" were involved? How put to question by a conflict of testimony. determine whether they were recognized and A definite legal proposition unmixed with applied, or denied and rejected, by the Com-fact was presented, and the only act of mission, and, necessarily, by the circuit judgment exercised by the Commission was court? An examination of the testimony, to reject it. by concession of counsel, is out of the question. And the findings of the Commission are made by law prima facie true. This court has ascribed to them the strength due to the judgments of a tribunal appointed by law and informed by experience. Louisville & N. R. Co. v. Behlmer, 175 U. S. 648, 44 In Cincinnati, N. O. & T. P. R. Co. v. Interstate Commerce Commission, passing on the effect of a shipment on a through bill of lading to give jurisdiction to the Commission (in which the Commission was sustained), the questions presented were the power in the Commission to fix a maximum |