fore the proportion of receipts to legitimate expenses in the borough of Newville remain practically about the same as in

1912.

As the status of respondent's business has not changed materially since a 6 per cent dividend was declared, and as the respondent failed to show that current for power was furnished at a loss under the old rates, an order will be issued restraining the respondent from putting into effect the proposed schedule providing for an increase in its rates for power on and after April 23, 1915.

OKLAHOMA SUPREME COURT.

ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY

et al.

บ.

STATE.

[No. 2905.]

[— Okla. —, 148 Pac. 144.]

Appeal and error - Appeal from order of Commission — Conclusive

ness.

A finding of the Corporation Commission that the rates charged by certain railway companies on shipments of live stock between points within the state are so unreasonably high compared to charges made for similar service in other states where competing markets are located and for similar service on interstate shipments to such competing markets, as to result in an unjust discrimination against industries and markets located within the state, will not be disturbed on appeal to this court, where there is evidence reasonably tending to support such finding. Appeal and review. evidence.

·Order of Commission

Rates Sufficiency in

An order of the Corporation Commission prescribing a schedule of rates to be charged on shipments of live stock suitable for packinghouse purposes will not be set aside on appeal as unreasonable, unjust, and confiscatory, where the evidence fails to show the cost of service for which the rates are to be charged, or the capital invested by the carriers and used in rendering such service, and fails to show that said rates will not yield a sufficient revenue to pay the cost of service for which they are charged, and to enable the class of traffic on which they are charged to contribute its fair and just share of the revenue Headnotes by the COURT.

necessary in addition to paying the expenses of service and general maintenance of the carrier's road, to enable the carrier to receive a reasonable dividend upon the value of the investment used in maintaining such service.

[April 23, 1912.]

FROM an order of the Oklahoma Corporation Commission promulgating certain rates of compensation and rules and regulations governing the transportation of live stock between points within the state, the Atchison, Topeka, & Santa Fe Railway Company appealed. Order confirmed.

Appearances: C. O. Blake, Cottingham & Bledsoe, Clifford L. Jackson, R. A. Kleinschmidt, Edgar A. De Meules, E. R. Jones, and Lovick P. Miles for the appellants; Charles West, Attorney General, and Charles L. Moore, Assistant Attorney General, for the State.

Hayes, J., delivered the opinion of the court: Appellants prosecute this appeal to reverse what is designated as final order No. 437 of the Corporation Commission of the state, whereby certain rates of compensation and rules and regulations governing the transportation of live stock between points within the state are promulgated. Appellants have treated the two assignments of error relied upon in their brief as presenting the following three propositions, to wit: First, that the findings and order of the Commission are not supported by the evidence; second, that each of the several schedules of rates prescribed by the order is unreasonable and unjust; third, that the order violates the state and Federal Constitutions, in that it directly affects interstate commerce.

The proceeding which resulted in the order complained of was instituted by the Commission of its own motion by giving notice to appellants on the 13th day of January, 1911, that a proposed order prescribing rates that should be charged by the railway companies in the state for transporting in carload lots, cattle, calves, hogs, sheep, and goats was contemplated by the Commission, and that a hearing on such proposed order would be had before the Commission on the 25th day of January, 1911. This action of the Commission was taken after many complaints had been made to it that the rates in force by the various railways of the state on shipments of live stock between points

within the state were so high and discriminatory, as compared with rates prevailing for similar shipments in other states and from this state to other states where packing industries are maintained, that the locality of Oklahoma City and its market for beef cattle to supply its packing industries were greatly prejudiced. The evidence introduced at the trial, which is voluminous, consists exclusively of the testimony of witnesses expert in the matter of rates to be charged by railway companies for carrying the kind of traffic involved in the order, and familiar with various schedules of rates in force in other states where packing industries are located and with rates applied to interstate shipments from this state and from other states to such similar industries located in other states. The cause was tried before the Commission principally upon the theory that the rates in force by the various railways in this state on shipments of fat cattle and hogs suitable for packing-house purposes before the promulgation of this order were, as compared to rates charged for similar services in other states and for similar interstate services, unreasonably high and discriminatory. It will not be necessary to set out here at any great length the evidence contained in the record. We have read it all carefully, and are of the opinion that there is sufficient evidence to sustain the conclusion and finding of the Commission that the rates heretofore in force and complained of by the shipping public and the packing industry located at Oklahoma City were so high as compared to rates prevailing in other states under similar conditions, and as compared to charges made for interstate shipments out of the state to other markets, as to result prejudicially to, and discriminate against, the Oklahoma City market.

The power exercised by the Commission in promulgating the order complained of is to be found granted by the terms of § 18, art. 9, of the Constitution, which in part provides that "the Commission shall have the power and authority and be charged with the duty of supervising, regulating, and controlling all transportation and transmission companies doing business in this state, in all matters relating to the performance of their public duties and their charges therefor, and of correcting abuses and preventing unjust discrimination and extortion by such companies; and to that end the Commission shall, from time to time

prescribe and enforce against such companies, in the manner hereinafter authorized, such rates, charges, classifications of traffic, and rules and regulations, and shall require them to establish and maintain all such public service, facilities, and conveniences as may be reasonable and just.

It will be observed that the language conferring upon the Commission power and authority to control transportation companies "in all matters relating" to "preventing unjust discrimination" is very broad, and the power is not confined to discriminations between individuals or classes of individuals. The language is comprehensive enough to include the prevention of unjust discriminations between localities and classes of traffic. It will also be observed that the Constitution does not by its terms, further than is implied by the term "unjust discrimination," limit or restrict the Commission in determining what is a discrimination that it may prevent by the adoption and promulgation of rules and regulations. It follows that as to what constitutes an "unjust discrimination" under this provision of the Constitution is largely, if not entirely, a question of fact.

In Ft. Smith & W. R. Co. v. State, 25 Okla. 866, 108 Pac.. 407, wherein the question involved was somewhat similar to the question involved in this case, it was held that, if there is any evidence reasonably tending to support the findings of fact of the Commission that the rates enforced by the public carriers for transportation between points within the state are unreasonably high and unjust, the findings and order of the Commission thereon prescribing a schedule of lower rates will not be disturbed.

It should be here mentioned that this appeal is prosecuted jointly by all of appellants; that their complaint against the order promulgated is that the entire schedule of rates contained therein is unreasonable and unjust as applied to all of appellants. No effort has been made to distinguish the effect of the application of the rates to one of appellants as being different in their effect upon the other appellants, or that any particular rate of the schedule is unjust. The attack is against the entire schedule, taken as a whole, and as applied to all of appellants. The evidence establishes that until within a short time before the promulgation of the order, no packing industry of sufficient im

portance existed in the state to create a market for fat cattle and hogs for packing purposes, but that within about twelve months prior to this proceeding there has been completed in Oklahoma City by Morris & Company an extensive modern packing plant capable of using and requiring for its operation a large quantity of fat cattle and hogs, and that there was at the time of the hearing in process of construction a second plant of the same character by Sulzbarger & Sons Company. By reason of the establishment of these plants in Oklahoma City, that point has become a competing market for fat cattle and hogs with the cities of Ft. Worth, Wichita, St. Joe, and Kansas City. It is admitted that the rates prevailing and enforced heretofore in this state by the railway companies were made without reference to any market existing in the state for fat live stock, and that there existed heretofore in the state on such traffic and the products of packing plants no commodity rates. It is also admitted by witnesses, testifying for appellants, that the establishment at any point of packing industries of the importance of those recently established in Oklahoma City usually requires, and has always been followed by, a readjustment of rates on the products required by such industries and sold by them in order that the rates to each competitive industry, relatively speaking, might be reasonable and just, and give to none of the competing localities an unfair advantage over the others. The evidence fully establishes that the railway companies recognized that Oklahoma City was entitled to such a readjustment of rates, and efforts, before the present proceeding was instituted, were made by the railway companies to arrive at a readjustment, which would be satisfactory to all parties concerned, including the competitive points of Ft. Worth, Wichita, and Kansas City; but, for some reason that does not clearly appear from the record, no readjustment was ever effected, except as to some few rates, which, in so far as they were changed, operated unfavorably to Oklahoma City.

As a part of the testimony of C. B. Bee, rate expert for the Commission, exhibits were filed giving the rates on cattle in force at the time of the hearing before the Commission in the states of Kansas, Nebraska, Iowa, Missouri, Texas, Illinois, and Oklahoma. These exhibits establish that for distances of 25, 50,