Statement of the Case.

nies at exceptional stations in the State of Michigan, and more or less extensively practised by companies in other States at exceptional stations."

On April 26, 1890, the Commission decided the case, which is reported in 3 Int. C. C. 613, and made the following order: "It is ordered and adjudged that the defendant, the Detroit, Grand Haven and Milwaukee Railway Company, be and it is hereby required, within thirty days from and after the service of a copy of the report and opinion in this proceeding and of this order, to wholly cease and desist from furnishing free cartage of freights at Grand Rapids, in the State of Michigan, whereby rebates from its lawfully published schedule of rates, fares and charges at its station or office in Grand Rapids are given to shippers and consignees, and charges for the transportation over its line of property shipped from eastern points to Grand Rapids, aforesaid, are made less than charges for the transportation over its line of like kinds of property shipped from the same eastern points to Ionia, in the State of Michigan."

On November 2, 1891, the Commission, having been informed that the company would not comply with the order until the judgment of the Commission should be judicially confirmed, filed a petition in the Circuit Court of the United States for the Western District of Michigan, seeking to enforce the order. To this an answer was filed by the company, admitting the facts to be as found by the Commission, and alleging certain additional facts, to support which testimony was adduced.

The Circuit Court on August 7, 1894, entered a decree in the following terms:

"It is hereby ordered, adjudged and decreed that the mandatory writ of injunction of this court do issue to said respondent, the Detroit, Grand Haven and Milwaukee Railway Company, commanding it and its officers and agents to forthwith desist and refrain from affording free cartage at said city of Grand Rapids, unless a like service or its equivalent in value by reduced rates be at the same time afforded at said city of Ionia, and unless the fact that such free cartage, or such

Opinion of the Court.

equivalent reduced rate afforded at both points, shall be noted on the established tariffs of freights and charges published as required by law." Interstate Com. Commission v. Detroit &c. Railway, 57 Fed. Rep. 1005.

From this decree an appeal was taken to the Circuit Court of Appeals for the Sixth Circuit, and that court, on April 14, 1896, entered a decree reversing the decree of the Circuit Court, and directing the dismissal of the Commission's petition. From the decree of the Circuit Court of Appeals an appeal was taken and allowed to this court.

Mr. Assistant Attorney General Whitney for appellant.

Mr. Harrison Geer for appellee.

Mr. E. W. Meddaugh filed a brief for appellee.

MR. JUSTICE SHIRAS, after stating the case, delivered the opinion of the court.

The petition of Stone & Carten, retail merchants at Ionia, addressed to the Interstate Commerce Commission, alleged violations by the railway company of sections 2, 3 and 4 of the interstate commerce act.

The opinion of the Commission sustained the petition avowedly under section 4 of the act, but their order or decree appears to have been based upon both sections 4 and 6. The Circuit Court, as we gather from the opinion of Circuit Judge Taft and the dissenting opinion of District Judge Severens, treated the case as arising under alleged violations of sections 2, 3 and 4. 27 Fed. Rep. 1005.

The opinion of the Circuit Court of Appeals discusses the case at large. 43 U. S. App. 308.

But the Assistant Attorney General, who appears in this court as counsel of the Interstate Commerce Commission, dispenses, in his elaborate brief, with any consideration of sections 2 and 3, and confines his attention to sections 4 and 6. His language is as follows:

Section 2 of the statute is referred to in the petition of

Opinion of the Court.

Stone & Carten, but is not the basis of the decision of either Commission or court. Section 3 also (the undue preference clause) is immaterial at the present stage of the case. Undoubtedly a preference is granted to Grand Rapids over Ionia, but whether the preference is undue or unreasonable within the meaning of the clause in question, was not decided by the Commission. Their decision was based upon other sections of the act. Nor did the Circuit Court base its decision at all upon this provision. Hence we shall submit no argument upon it.

"This leaves for consideration section 4 (the long and short haul clause) and section 6 (the schedule clause). Under section 4 we seek to protect the shippers of Ionia. Under section 6 we seek to protect the humbler and more ignorant shippers of Grand Rapids, that they may not suffer through lack of publicity of the privileges which their larger rivals enjoy."

In our disposition of the case we shall, therefore, consider only the contention now made on behalf of the Commission, namely, that the conduct of the railway company, in furnishing cartage free of charge to the merchants of Grand Rapids, and in not furnishing similar service to the merchants of Ionia, a town thirty-three miles distant, and in failing to publish such free cartage in the schedule published at Grand Rapids, constituted a violation of the provisions of section 4 and section 6 of the Interstate Commerce Act.

One of the findings of the Commission is that the railroad company, as a common carrier for continuous shipment, under a common arrangement, of property from Detroit to its stations on its line of transportation, established and published a schedule of rates and charges, a tariff of freights which makes on all freights from Philadelphia, New York and Boston, and all other points east of Detroit, consigned over the company's road, the same rates and charges for the complainants which are made and charged for the same class of freights to merchants doing business at the city of Grand Rapids. But there is no complaint made of that fact. Indeed, it is conceded by the Commission that so-called " group rates are not in violation of the long and short haul clause; and,

Opinion of the Court.

therefore, if there were nothing else in the case, except that the company's charges were the same for like kinds of property transported to and from Ionia as those charged to and from Grand Rapids, to and from points outside of the State, no complaint would have been made or entertained.

The sole complaint urged is that the railway company carts goods to and from its station or warehouse at Grand Rapids without charging its customers for such service, while its customers at Ionia are left themselves to bring their goods to and take them from the company's warehouse, and that, in its schedules posted and published at Grand Rapids, there is no notice or statement by the company of the fact that it furnishes such cartage free of charge. These acts are claimed to constitute violations of sections 4 and 6 of the Interstate Commerce Act, 24 Stat. 380, c. 104.

The language of section 4 is as follows:

"That it shall be unlawful for any common carrier subject to the provisions of this act to charge or receive any greater compensation in the aggregate for the transportation of passengers or of like kinds of property, under substantially similar circumstances and conditions, for a shorter than for a longer distance over the same line, in the same direction, the shorter being included within the longer distance; but this shall not be construed as authorizing any common carrier within the terms of this act to charge and receive as great compensation for a shorter as for a longer distance: Provided however, That upon application to the Commission appointed under the provisions of this act, such common carrier may, in special cases, after investigation by the Commission, be authorized to charge less for longer than for shorter distances for the transportation of passengers or property; and the Commission may from time to time prescribe the extent to which such designated common carrier may be relieved from the operation of this section of this act."

The Detroit, Grand Haven and Milwaukee Railway Company is a corporation of the State of Michigan, and its road lies wholly within that State. In addition to its local business it is engaged as a common carrier in interstate commerce, by

Opinion of the Court.

arrangements made with connecting railroads. For a period of upwards of twenty-five years before these proceedings this company has openly and notoriously, at its own expense, transferred goods and merchandise to and from its warehouse to the places of business of its patrons in the city of Grand Rapids. The station of the company, though within the limits of the city, is distant on an average one and a quarter miles from the business sections of the city where the traffic of the places tributory to the company's road originates and terminates.

The Compiled Laws of the State of Michigan of 1871 contain act No. 96 of the Laws of 1859, section 3 of which is as follows:

"Every railway company in this State is authorized to make personal delivery of every parcel, package or quantity of goods or property, if the consignee of such property shall reside within two miles of the terminus or railway station or other terminus of the carriage of such property by the main line of such carrier, and they are hereby authorized to employ or own all the means necessary to perform such duty, and to place the men and vehicles therefor under the government and sole regulation of the superintendent or other principal officer of such companies. Such delivery shall be at the house, shop, office or other place of business of the consignee, according to the nature of such property, and where the owner or consignee desires to have the same.'

The theory of this enactment evidently is that the duties and powers of a railway company reached no further than the carriage of goods and merchandise, entrusted to it, to its station or warehouse, and that an additional grant of power was needed to enable the company to act as a carrier between its station or warehouse and the house or office of the owner or consignee. However this may be, this record exhibits the case of a Michigan railroad company engaged, for a quarter of a century, in collecting and delivering goods and merchandise at and to the houses and business places of its customers without any charges beyond those made for the railway service.

VOL. CLXVII-41