many other States and Territories, filed with the Commission a petition attacking the lawfulness of this terminal charge. Soon after the commencement of that proceeding the Chicago Live Stock Exchange, an incorporated body, whose members are engaged in selling on commission cattle at Chicago, intervened in favor of the complainant. The defendants claimed upon the strength of Walker v. Keenan, 73 Fed. Rep., 755, that they might segregate their rate for the transportation of live stock to Chicago, naming one rate for the service up to Chicago and a second charge for a delivery to the stock yards. The Commission admitted the authority of Walker v. Keenan as applied to the case under consideration, without approving the general principle that terminal charges should be named separate from other charges for transportation, but held that segregation was one thing and addition another. What the railways had done in this case was not to separate the rate upon this live stock, but to make an arbitrary addition to the previous rate. They were charging $2 per car more for bringing exactly the same freight and performing exactly the same service as before. The Commission was of the opinion that the amount charged previous to June 1, 1894, had been a fair and reasonable compensation for this service and that the addition of this $2 charge was unjust and unreasonable. The cost of rendering this service had, however, been increased by the amount of the trackage charge exacted by the Union Stock Yards & Transit Company, and it was the opinion of the Commission that the carriers might properly increase their rate correspondingly. This charge was 80 cents in some cases and $1.50 in others, but competitive conditions were such that all the defendants must make the same terminal charge. To have allowed each railway to impose a charge equal in amount to the trackage charge paid by it and no more would have compelled all the defendants to reduce this charge to 80 cents per car, although many of them paid $1.50. Under these circumstances it seemed just to permit the making of a charge of $1 by all the defendants, and such was the conclusion reached. Cattle Raisers' Association of Texas et al. v. Fort Worth & Denver City Ry. Co. et al., 7 I. C. C. Rep., 513. Upon the promulgation of this decision the defendants moved for a rehearing, which was denied. 7 I. C. C. Rep., 555a. The Commission entered an order in accordance with its conclusion, which the defendants declined to obey, and thereupon suit was brought to enforce the same, which finally resulted in a decision by the Supreme Court of the United States directing that the petition be dismissed. Interstate Commerce Commission v. Chicago, Burlington & Quincy R. R. Co. et al., 186 U. S., 320. The Supreme Court held that the Commission was warranted in finding that the handling of carloads of live stock to the stock yards had not been a gratuity previous to June 1, 1894, and that the imposition of the $2 terminal charge without any justification was unlawful. The report of the Commission stated that after the imposition of the $2 charge rates from certain territory involved had been reduced by an amount exceeding the amount of the terminal charge and did not state the reason for the reduction nor define the territory to which it applied. Since the total through rate, including the terminal charge from this territory, would be less after this reduction than it had been before the addition of the $2 charge, the court was of the opinion that, in the absence of any showing as to the cause of the reduction, the total rate, including the terminal charge, must be considered reasonable from territory affected by the reduction; and further, since there was nothing in the case from which that territory could be defined, it was impossible to enforce the order of the Commission as to any territory. After the promulgation of this decision the Cattle Raisers' Association of Texas and the Chicago Live Stock Exchange, the complainants in the present proceeding, filed a petition with the Commission setting forth that rates from that territory from which reductions had been made in 1896 had been advanced and were then higher than before June 1, 1894. This petition prayed that the Commission would reopen the case, define this territory, and order the carriers to desist from the imposition of the terminal charge from that and from all other territory. The defendants insisted that by the decree dismissing the bill of the Commission to enforce its order the whole case was finally ended and that nothing further could be done in that proceeding. The Supreme Court, at the conclusion of its opinion, had used the following language: It follows that the decree of the circuit court of appeals, which affirmed the decree of the circuit court, refusing to command compliance with the order of the Commission, was right, and it must therefore be affirmed. We think, however, in view of what has been said, and in order to prevent all possible misconception, that it should be stated that nothing in the decree refusing to execute the order of the Commission should be construed as preventing that body, if it deems it best to do so, from hereafter commencing proceedings to correct any unreasonableness in the rate resulting from the additional charge as to any territory to which the reduction referred to in the opinion, if any such there be, did not apply. The Commission held that with respect to the territory covered by the reductions of 1896 no further steps could be taken in that proceeding, but that with respect to all other territory, by the very words of the opinion of the Supreme Court, further steps might be taken, and we were of the opinion that it was within our discretion to determine whether these further proceedings should be had upon a new petition or by a continuation of the former suit. We accord ingly reopened that case as to all territory except that covered by the reductions of 1896, with leave to all parties to introduce such further testimony as they might desire. Cattle Raisers' Asso. of Texas et al. v. Chicago, Burlington & Quincy R. R. Co. et al., 10 I. C. C. Rep., 83. Upon the original trial no testimony had been introduced touching the reasonableness of rates upon live stock to Chicago before or after the imposition of the terminal charge. Upon the rehearing much testimony to that point was produced by both parties. The defendants sought to show that such rates had, before June 1, 1894, become unduly low, so that even after the imposition of the $2 charge they were still reasonable, and they further claimed that if this were not the case previous to that date such rates had since, owing to reductions and to increased cost of operation, become so unremunerative that the addition of this charge was justifiable. The complainants, upon the other hand, insisted that the rates were sufficiently high before June 1, 1894; that advances rather than reductions had been the rule since then, and that while the cost of operation had increased, this had been more than offset by the increase of traffic. The Commission found that rates on June 1, 1894, were sufficiently high to include a delivery at the stock yards, if no trackage charge had been imposed by the stock-yards company; that while rates subsequent to that date had been sometimes advanced and sometimes reduced, these changes had been made for other reasons and had no reference to the terminal charge; that live-stock rates had been at all times since June, 1894, and were then, sufficient to include a delivery at the stock yards, and that the imposition of this charge was unlawful, except in so far as it was justified by the increased cost of service owing to the trackage charge. The defendants were therefore ordered to desist from imposing the $2 charge with respect to all territory except that from which the reductions of 1896 had applied, which was defined in the report of the Commission. This report was made August 16, 1905. Cattle Raisers' Association of Texas et al. v. Chicago, Burlington & Quincy R. R. Co. et al., 11 I. C. C. Rep., 277. No proceedings have ever been begun for the enforcement of the order then entered. On December 3, 1906, the complainants, the Cattle Raisers' Association of Texas and the Chicago Live Stock Exchange, filed their petition in the present proceeding, setting up the facts hereinbefore stated, alleging that the imposition of the $2 terminal charge had been and still was unlawful under the first section of the act, because unjust and unreasonable, and a discrimination in violation of the third section inasmuch as this charge was imposed at Chicago while not imposed under similar conditions at rival markets, and praying that the Commission would order the carriers to desist from making any terminal charge whatever, or, if in its opinion some charge might be made, then, that it would fix the amount of that charge. The manifest purpose of this new proceeding was to gain the benefit of the increased authority conferred upon this Commission by the amendments of June 29, 1906. Under stipulation of parties all the testimony taken in the former proceedings is before us, and considerable additional testimony has been introduced in this proceeding. The issues are the same as heretofore and the cause has been argued and submitted by counsel upon the same general lines. We see no reason to change our former holding in this matter. We are of the opinion that live-stock rates from points in other States and Territories to Chicago over the lines of the defendants are sufficiently high to include a delivery at the Union Stock Yards, save for the trackage charge exacted by the Stock Yards Company, and that the imposition of the $2 terminal charge for such delivery is unjust and unreasonable. In view of this trackage charge as applied to competitive conditions at Chicago we are of the opinion that these defendants may reasonably impose a charge of $1 per car and not more. The complainants insisted that this entire charge ought to be condemned by the Commission for the reason that the defendants, even though required to make payment for the use of the tracks of the Stock Yards Company, nevertheless make deliveries of this live stock at the stock yards cheaper by far than they deliver other carload freight in the city of Chicago. The original case did not show the cost of making delivery of other kinds of carload freight at this market, but the present record shows that the average cost to one defendant, the Atchison, Topeka & Santa Fe Railway Company, of delivering all kinds of carload freight, including live stock, is $5.40 per car, while the cost of delivering live stock is not far from $2 per car. The testimony further indicates that the average cost of delivering all kinds of carload freight does not differ much in the case of the Santa Fe from that in the case of the other defendants, although it does appear that several of the defendants are at greater expense than $2 per car in making delivery of live stock at the stock yards. We think it fairly appears upon this record that the total cost to these defendants of delivering live stock at the Union Stock Yards, including the trackage charge, is not much, if any, above one-half the average cost of handling all carload freight in the city of Chicago. There is, therefore, some force in the suggestion of the complainants, but inasmuch as these rates had been adjusted previous to June 1 ese Coup ge of se that 1 of the and they m in all pro ., ingly reopened that case as to all territory except that cr naps all, of these abject-matter is for be unreasonable now, although a that while it will not, ordinarily, reex ciently high to include a een fully heard and passed upon unless a delivery at the st was unlawful, ex cost of service of therefore order to all territor applied, whic This repo of Texas e this is for reasons of convenience and been at all times sin of Texas v. Chicago, Burlington & Quincy had no reference to Santa Fe Ry. Co., 8 I. C. C. Rep., 304, 308; Shes aparently declared that the determination of a red which is the function exercised by the Commising is legislative rather than judicial. Reagan v. Lam & Trust Co., 154 U. S., 362; Interstate Commerce what the effect might be upon the right of the Commission mine at some subsequent time a particular rate if the court, pings for that purpose, should restrain the enforcement ner of the Commission putting in a substitute for that rate Sun We hold that a decree dismissing the bill brought June 29, 1906, is not a bar to the right of the Commission to an onder of this Commission made previous to the amendwith respect to the present time the same rate involved in may be noticed that this question can not arise as to most of the involved here. The Supreme Court, in dismissing the petition the king of subsequent steps with respect to all territory not covered of the Commission, expressly stated that its action should not prevent the reductions of 1896. The defendants objected to a reopening ICC Rep., 83, 106. The Supreme Court of the 11 I. C. C enforcem On De ciation petition stated. and st and u tion pose 12 I. C. C. Rep. |