upon rehearing, this contention was noticed and the Supreme Court remarked that in the opinion in the case, notwithstanding it was said that the fares were not unreasonable when compared with the charges made by other railway companies for similar services, the court had held that the law extended to charges which were "unreasonable or unjustly discriminatory;" and it was said (56 Oregon, 487):

"The fact that a rate is per se reasonable does not disprove the charge that it is unlawful,' say Messrs. Beale and Wyman in their work on Railroad Regulation, at § 839. 'If rates are relatively unjust, so that undue preference is afforded to one locality or undue prejudice results to another, the law is violated and its penalties incurred, although the higher rate is not in itself excessive.' The question presented for consideration is not the reasonableness per se of the charge, but its reasonableness considered in relation to charges made by plaintiff at other localities on its system for like and contemporaneous service; for the statute, as we have construed it, forbids undue preference or discrimination between localities. Circumstances, however, may so explain the difference between rates compared as to deprive the lower rate of any bearing on the higher, but the discrimination, without an excuse recognized by the law, would be in and of itself unjust and unreasonable. Beale and Wyman, § 838."

In the light of this consideration of the statute, we will consider the contention that in this particular case, there has been a deprivation of due process of law within the meaning of the Federal Constitution.

Ordinarily, in cases which come before us for review, this court accepts the facts as found by the state Supreme Court. An examination of the record in this case convinces us that the conclusions reached by the court do not bring the case within that exceptional class where this court will reexamine the facts found, with a view to

ascertaining the correctness of the conclusions reached. Kansas City Southern Railroad Co. v. Albers Commission Co., 223 U. S. 573; Cedar Rapids Gas Co. v. Cedar Rapids, 223 U. S. 655; Oregon R. R. & N. Co. v. Fairchild, 224 U. S. 510; Creswill v. Knights of Pythias, 225 U. S. 246; Wood v. Chesborough, 228 U. S. 672. In this case the facts found by the lower court and adopted in the Supreme Court are supported by competent testimony; and this court does not sit to retry issues of fact thus heard and determined by the properly constituted tribunals of the State having jurisdiction of the subject.

The findings show that the Railway Company carried passengers upon the Mt. Scott line between Portland and Lents for five cents each and gave them a free transfer for carriage upon the lines of the Portland Railway Company in the City of Portland and the adjacent City of St. Johns, but charged a ten-cent fare to Milwaukie and gave no transfers. The effect of such discrimination is found to have been the building up and development of Lents and the country along the line to Lents and the retarding of the settlement and growth of the localities and communities situated upon the less favored division. Findings are made showing the conditions and circumstances under which transportation is made upon the divisions of the road, and the similarity of circumstances and conditions, except as to the charging of the different rates and the giving of transfer privileges to the one and the withholding of such privileges from the other. In view of these findings, based upon evidence, we cannot say that the determination of the Commission, confirmed by the courts, that the rates of fare were discriminatory, was in deprivation of due process of law.

The contract set up by which the fares from Lents were required to be not greater than five cents cannot be held to justify the discrimination, as such contracts must be taken to have been made in view of the continuing power

of the State to control the transportation rates of common carriers subject to its jurisdiction. Armour Packing Co. v. United States, 209 U. S. 56; Louisville & Nashville R. R. v. Mottley, 219 U. S. 467.

It is also argued that the rates established by the order of the Commission are such as to be of a confiscatory nature and therefore within the prohibitions of the Fourteenth Amendment. Upon this branch of the case the Circuit Court found that there was not evidence sufficient to show the value of the property or its divisions used in the operation of the road, nor sufficient to show the income or expenditures, or profit or loss from the operation of the different divisions, or the cost of transporting passengers upon any such divisions. An examination of the testimony does not satisfy us that the court below was without substantial proof in reaching this conclusion. The Supreme Court of Oregon, in view of its findings upon the discriminatory character of the rates established, did not find it necessary to consider by itself the reasonableness of the charge, and the record before it did not present a case of confiscatory rates so clear that this court should interfere because of the protection afforded by the Federal Constitution.

We find no violation of the Fourteenth Amendment in the judgment of the Supreme Court of Oregon.

Affirmed.

PORTLAND RAILWAY, LIGHT AND POWER COMPANY v. RAILROAD COMMISSION OF OREGON (NO. 2).

ERROR TO THE SUPREME COURT OF THE STATE OF OREGON.

No. 120. Argued May 1, 2, 1913.-Decided June 10, 1913.

57 Oregon, 126, affirmed, on the authority of the preceding case.

THE facts are stated in the opinion.

Mr. Franklin T. Griffith, and Mr. Joseph S. Clark, with whom Mr. Frederick V. Holman was on the brief, for plaintiff in error.

Mr. A. M. Crawford, Attorney General of the State of Oregon, and Mr. Clyde B. Aitchison, with whom Mr. R. R. Giltner and Mr. R. M. Sewell were on the brief, for defendant in error.

MR. JUSTICE DAY delivered the opinion of the court.

The Oak Park Improvement Association, a voluntary organization of persons residing in and about the stations on the Oregon City Division of the plaintiff in error, the Portland Railway, Light and Power Company, known as the Oak Grove District and comprising Milwaukie Heights, Courtney, Oak Grove, Center and Risley, sought by complaint filed with the Railroad Commission of Oregon to have the Commission fix reasonable fares and to order their substitution for those found to be unreasonable and unjustly discriminatory. The Commission, upon hearing, found that the rate of fare of fifteen cents charged

by the Railway Company between the City of Portland and the Oak Grove District was unreasonable and unjustly discriminatory, and ordered the Railway Company to charge in lieu thereof a ten cent fare and to give the same transfer privileges to passengers traveling between Portland and the Oak Grove District that were accorded to passengers on the Mt. Scott Division of the plaintiff in error. The Supreme Court of Oregon, relying upon the conclusions reached by it in the Milwaukie Case (Portland Railway, Light & Power Co. v. Railroad Commission, 56 Oregon, 468), decided this day by this court, ante, p. 397, affirmed the decree of the Circuit Court confirming the order of the Commission, 57 Oregon, 123, and the case is here on writ of error.

The findings of fact in the present case are practically identical with those in the Milwaukie Case, ante, p. 397, except the exclusion of facts applying to Milwaukie alone and the substitution of facts pertinent to the Oak Grove District, and show that the circumstances and conditions under which the plaintiff in error transports passengers between Portland and certain stations named for a fare of ten cents, with transfer privileges, are substantially the same as the circumstances and conditions under which the plaintiff in error transports passengers between Portland and the Oak Grove District, except as to the rate of fare and the giving of transfers, and that, while the charges of the Railway Company upon the Oregon City Division are not in themselves unreasonable, they are "unjust and unreasonable, discriminatory and give undue preference."

This case, denominated the Oak Grove Case, and the Milwaukie Case were heard together in the Supreme Court of Oregon and have been presented together in this court. The contentions asserted in this case are the same contentions set up in the Milwaukie Case, and the opinion in the latter case (ante, p. 397) has dealt with the controversy