Where glass can be transported by water or rail it seems railroad transportation is preferred, mainly on account of the better facilities for handling and stowing away, and because claims for breakage against the railroads are inconsiderable. The domestic glass is loaded and unloaded by the consignor and consignee, while the railroads are at the expense of loading the import glass at the seaboard.

The defendants maintain that the disparity in rates results from the necessities of the trade and the demands of commerce, for which they are not responsible and from which they can not escape; that efforts have been made by the carriers to correct the situation, but the case is doubly hard to deal with by reason of the fact that any concerted action on the part of the carriers fixing rates might bring them within the provisions of the Sherman antitrust act of July 2, 1890, and, second, because of the competition of the carriers among themselves, and the opposing interests of the seaports. Each railroad seeks to encourage the bringing of ships to its piers that there may be facilities for handling the exports of this country. These ocean carriers demand the carriage of a share of the imports, and will land at those piers where they can unload and load the greatest quantity. The railroads are thus forced to permit these carriers to make deliveries of imports, and are further forced to make cheap carriage of these imports to inland destinations in order to sustain the movement of traffic from abroad and incidentally to maintain their own export and import transportation.

The difficulties of the carriers in reaching an agreement upon the subject of rates are increased by reason of the situation of the ports, e. g., the lower rate is given via New Orleans because the ocean. mileage is much greater, involving more risk and longer delays, and less regularity of service than via Atlantic ports, and, consequently, the importers must be induced to accept this route by the offer of a lower rate. It was claimed also that many of the cars hauling the products of the Mississippi Valley to the Gulf ports for export would return empty unless they could be freighted with import goods, and these shipments they were glad to procure at a small price for the carriage, as any receipts from this source under the circumstances. 'represent practically a net profit to the railroads.

During the period covered by the proceedings had in these cases import tariffs were in an unsettled condition. A different through rate might be named each day in good faith for the carriage of like shipments between the same points, without the railroads being liable to the charge of unjust discrimination, these fluctuations being due mainly to the exigencies of the ocean carriers, the division to the railroad not being always affected by such changes.

Competition exists from the Gulf ports along the Atlantic seaboard to Montreal and other Canadian ports, and upon application for a rate from Antwerp to any interior point in the United States each railroad might give a different quotation in the effort to bid lower than its competitors, as the ocean rates are more or less flexible to meet the conditions imposed by the shipper.

In the case of New York Board of Trade & Transportation et al. v. Pennsylvania Railroad Company et al., 4 I. C. C. Rep., 447, involving rates on import traffic, decided January 29, 1891, the Commission held as follows:

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The statute has provided for the regulation of interstate traffic, by interstate carriers, partly by rail and partly by water or all-rail, shipped from one point in the United States to another destination within the United States, or from a point of shipment in the United States to a port of entry within the United States or an adjacent foreign country, or from a port of entry either within the United States or in an adjacent foreign country, on import traffic brought to such port of entry, from a foreign port of shipment and destined to a place within the United States. * * The statute has undertaken no such regulation from foreign ports of shipment to ports of entry either within the United States or to ports of entry in an adjacent foreign country, and as between these ports has provided for no publication of tariffs of rates and charges, but has left it to the unrestrained competition of ocean carriers and all the circumstances and conditions surrounding it. These circumstances and conditions are indeed widely different in many respects from the circumstances and conditions surrounding the carriage of domestic interstate traffic between the States of the American Union by rail carriers; but as the regulation provided for by the act to regulate commerce does not undertake to regulate or govern them, they can not be held to constitute reasons in themselves why imported freight brought to a port of entry of the United States or a port of entry of an adjacent foreign country destined to a place within the United States should be carried at a lower rate than domestic traffic from such ports of entry respectively to the places of destination in the United States over the same line and in the same direction. To hold otherwise would be for the Commission to create exceptions to the operation of the statute not found in the statute; and no other power but Congress can create such exceptions in the exercise of legislative authority. But when it (import freight) reaches a port of entry within the United States, or a port of entry of a foreign country adjacent to the United States, in either event upon a through bill of lading, destined to a place in the United States, then its carriage from such port of entry to its place of destination in the United States under the operation of the act to regulate commerce must be under the inland tariff from such port of entry to such place of destination covering other like kind of traffic in the elements of bulk, weight, value, and of carriage. * * Foreign and home merchandise, therefore, under the operation of this statute, when handled and transported by interstate carriers, engaged in carriage in the United States, stand exactly upon the same basis of equality as to tolls, rates, charges and treatment for similar services rendered.

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On March 23, 1889, the Commission issued a general order, which provided, among other things, as follows:

Imported traffic transported to any place in the United States from a port of entry or place of reception, whether in this country or in an adjacent foreign country, is required to be taken on the inland tariff covering other freights.

On January 29, 1891, the Commission made a similar order, effective May 5, 1891, against such of the defendant carriers as were found to be disregarding the ruling in the case of New York Board of Trade & Transportation v. Pennsylvania Railroad Company et al., for the enforcement of which it was necessary to institute proceedings in the Circuit Court of the United States for the Southern District of New York, and which finally went to the Supreme Court of the United States on appeal, whereupon a decree was entered March 30, 1896, adverse to the above ruling of the Commission.

This ruling of the court, in Texas & Pacific Railway Company v. Interstate Commerce Commission, 162 U. S., 197, is so directly pertinent to the matters now in controversy before us that we deem it proper here to quote from the elaborate opinion therein, as follows:

We come now to the main question of the case, and that is whether the Commission erred, when making the order of January 29, 1891, in not taking into consideration the ocean competition as constituting a dissimilar condition and in holding that no circumstances and conditions which exist beyond the seaboard in the United States could be legitimately regarded by them for the purpose of justifying the difference in rates between import and domestic traffic.

After briefly reviewing the causes which led up to the passage of the act and the purposes of the same, the court adds:

The scope or purpose of the act is, as declared in its title, to regulate commerce. It would, therefore, in advance of an examination of the text of the act, be reasonable to anticipate that the legislation would cover, or have regard to, the entire field of foreign and interstate commerce, and that its scheme of regulation would not be restricted to a partial treatment of the subject. So, too, it could not be readily supposed that Congress intended, when regulating such commerce, to interfere with and interrupt, much less destroy, sources of trade and commerce already existing, nor to overlook the property rights of those who had invested money in the railroads of the country, nor to disregard the interests of the consumers, to furnish whom with merchandise is one of the principal objects of all systems of transportation.

Having thus included in its scope the entire commerce of the United States, foreign and interstate, and subjected to its regulations all carriers engaged in the transportation of passengers or property, by whatever instrumentalities of shipment or carriage, the section proceeds to declare that "all charges made for any service rendered or to be rendered in the transportation of passengers or property as aforesaid, or in connection therewith, or for the receiving, delivering, storage or handling of such property, shall be reasonable and just; and every unjust and unreasonable charge for such service is prohibited and declared to be unlawful."

The significance of this language, in thus extending the judgment of the tribunal established to enforce the provisions of the act to the entire service to be performed by carriers, is obvious.

Proceeding to the second section, we learn that its terms forbid any common carrier, subject to the provisions of the act, from charging, demanding, collecting or receiving "from any person or persons a greater or less compensation for any service rendered or to be rendered, in the transportation of passengers or property, sub

ject to the provisions of the act, than it charges, demands, collects or receives from any other person or persons for doing for him or them a like and contemporaneous service in the transportation of a like kind of traffic under substantially similar circumstances and conditions," and declares that disregard of such prohibition shall be deemed "unjust discrimination," and unlawful.

Here, again, it is observable that this section contemplates that there shall be a tribunal capable of determining whether, in given cases, the services rendered are "like and contemporaneous," whether the respective traffic is of a "like kind," and whether the transportation is under "substantially similar circumstances and conditions."

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The Commission justified its action wholly upon the construction put by it on the act to regulate commerce, as forbidding the Commission to consider the "circumstances and conditions" attendant upon the foreign traffic as such "circumstances and conditions" as they are directed in the act to consider. The Commission thought it was constrained by the act to regard foreign and domestic traffic as like kinds of traffic under substantially similar circumstances and conditions, and that the action of the defendant company in procuring through traffic that would, except for the through rates, not reach the port of New Orleans, and in taking its pro rata share of such rates, was an act of “unjust discrimination," within the meaning of the act.

In so construing the act we think the Commission erred.

As we have already said, it could not be supposed that Gongress, in regulating commerce, would intend to forbid or destroy an existing branch of commerce, of value to the common carriers and to the consumers within the United States. Clearly, express language must be used in the act to justify such a supposition.

So far from finding such language, we read the act in question to direct the Commission, when asked to find a common carrier guilty of a disregard of the act, to take into consideration all the facts of the given case-among which are to be considered the welfare and advantage of the common carrier, and of the great body of the citizens of the United States who constitute the consumers and recipients of the merchandise carried; and that the attention of the Commission is not to be confined to the advantage of shippers and merchants who deal at or near the ports of the United States, in articles of domestic production. Undoubtedly the latter are likewise entitled to be considered; but we can not concede that the Commission is shut up by the terms of this act to solely regard the complaints of one class of the community. We think that Congress has here pointed out that, in considering questions of this sort, the Commission is not only to consider the wishes and interests of the shippers and merchants of large cities, but to consider also the desire and advantage of the carriers in securing special forms of traffic, and the interest of the public that the carriers should secure that traffic, rather than abandon it, or not attempt to secure it. It is self-evident that many cases may and do arise where, although the object of the carriers is to secure the traffic for their own purposes and upon their own lines,yet, nevertheless, the very fact that they seek, by the charges they make, to secure it, operates in the interests of the public.

Moreover, it must not be overlooked that this legislation is experimental. Even in construing the terms of a statute, courts must take notice of the history of legislation, and, out of different possible constructions, select and apply the one that best comports with the genius of our institutions and, therefore, most likely to have been the construction intended by the lawmaking power. Commerce, in its largest sense, must be deemed to be one of the most important subjects of legislation, and an intention to promote and facilitate it, and not to hamper or destroy it, is naturally to be attributed to Congress. The very terms of the statute that charges must be reason

able, that discrimination must not be unjust, and that preference or advantage to any particular person, firm, corporation or locality must not be undue or unreasonable, necessarily imply that strict uniformity is not to be enforced; but that all circumstances and conditions which reasonable men would regard as affecting the welfare of the carrying companies, and of the producers, shippers and consumers, should be considered by a tribunal appointed to carry into effect and enforce the provisions of the act.

The principal purpose of the second section is to prevent unjust discrimination between shippers. It implies that, in deciding whether differences in charges, in given cases, were or were not unjust, there must be a consideration of the several questions whether the services rendered were "like and contemporaneous," whether the kinds of traffic were "like," whether the transportation was effected under "substantially similar circumstances and conditions." To answer such questions, in any case coming before the Commission, requires an investigation into the facts; and we think that Congress must have intended that whatever would be regarded by common carriers, apart from the operation of the statute, as matters which warranted differences in charges, ought to be considered in forming a judgment whether such differences were or were not "unjust." Some charges might be unjust to shippers-others might be unjust to the carriers. The rights and interests of both must, under the terms of the act, be regarded by the Commission.

The third section forbids any undue or unreasonable preference or advantage in favor of any person, company, firm, corporation or locality; and as there is nothing in the act which defines what shall be held to be due or undue, reasonable or unreasonable, such questions are questions not of law but of fact. The mere circumstance that there is, in a given case, a preference or an advantage does not of itself show that such preference or advantage is undue or unreasonable within the meaning of the act. Hence it follows that before the Commission can adjudge a common carrier to have acted unlawfully, it must ascertain the facts; and here again we think it evident that those facts and matters which carriers, apart from any question arising under the statute, would treat as calling, in given cases, for a preference or advantage, are facts and matters which must be considered by the Commission in forming its judgment whether such preference or advantage is undue or unreasonable.

The effort of the Commission, by a rigid general order, to deprive the inland consumers of the advantage of through rates, and to thus give an advantage to the traders and manufacturers of the large seaboard cities, seems to create the very mischief which it was one of the objects of the act to remedy.

The conclusions that we draw from the history and language of the act, and from the decisions of our own and the English courts, are mainly these: That the purpose of the act is to promote and facilitate commerce by the adoption of regulations to make charges for transportation just and reasonable, and to forbid undue and unreasonable preferences or discriminations: That, in passing upon questions arising under the act, the tribunal appointed to enforce its provisions, whether the Commission or the courts, is empowered to fully consider all the circumstances and conditions that reasonably apply to the situation, and that, in the exercise of its jurisdiction, the tribunal may and should consider the legitimate interests as well of the carrying companies as of the traders and shippers, and in considering whether any particular locality is subjected to an undue preference or disadvantage the welfare of the communities occupying the localities where the goods are delivered is to be considered as well as that of the communities which are in the locality of the place of shipment: That among the circumstances and conditions to be considered, as well in the case of traffic originating in foreign ports as in the case of traffic originating within the limits of the United