Opinion of the Court.

one days between the 13th of October and the 3d of November, 1892. Therefore, if any surveys were returned in such sections they must have been made up from office documents, and not by actual survey on the ground.

In Jumbo Cattle Co. v. Bacon, 79 Texas, 5, the Court of Civil Appeals of Texas decided that under the act of July 14, 1879, as amended by the act of March 11, 1881, providing that any person desiring to purchase any unappropriated land may do so by causing the tract which said person desires to purchase "to be surveyed" by the authorized public surveyor of the county in which the land is situated, a survey not actually made in the field, but copied from the field-notes of a prior survey on file in the surveyor's office, is not such a survey as is contemplated by the act of the legislature; and that such a survey does not entitle the proposed purchaser to a deed to the land.

The claim that the plaintiff below, Russ, had parted with valuable property, for which he was entitled to a judgment exceeding half a million of dollars from Count Telfener, for having transferred to him his hopes of securing a million acres of land from the State, for which he did not hold any promise or obligation of the State, does not merit consideration. As a claim it rests upon no solid foundation.

It follows that, for the errors stated,

The judgment of the Circuit Court of Appeals should be reversed, and the judgment of the Circuit Court should also be reversed, and the cause remanded with a direction to set aside the verdict and grant a new trial, and it is so ordered.

Syllabus.

CINCINNATI, NEW ORLEANS AND TEXAS PACIFIC RAILWAY COMPANY v. INTERSTATE COMMERCE COMMISSION.

INTERSTATE COMMERCE COMMISSION

v. CIN

CINNATI, NEW ORLEANS AND TEXAS PACIFIC RAILWAY COMPANY.

APPEALS FROM THE CIRCUIT COURT OF APPEALS FOR THE FIFTH

CIRCUIT.

Nos. 394, 473. Argued January 30, 81, 1896.-) Decided March 30, 1896.

When a state railroad company whose road lies within the limits of the state, enters into the carriage of foreign freight by agreeing to receive the goods by virtue of foreign through bills of lading, and to participate in through rates and charges, it thereby becomes part of a continuous line, not made by a consolidation with the foreign companies, but by an arrangement for the continuous carriage or shipment from one State to another; and thus becomes amenable to the Federal act in respect to such interstate commerce; and, having thus subjected itself to the control of the Interstate Commerce Commission, it cannot limit that control in respect to foreign traffic to certain points on its road to the exclusion of other points.

When goods shipped under a through bill of lading, or in any other way indicating a common control, management or arrangement, from a point in one State to a point in another State are received in transit by a state common carrier, such carrier, if a railroad company, must be deemed to have subjected its road to an arrangement for a continuous carriage or shipment within the meaning of the act to regulate commerce. The Interstate Commerce Commission is not empowered either expressly, or by implication, to fix rates in advance; but, subject to the prohibitions that their charges shall not be unjust or unreasonable, and that they shall not unjustly discriminate, so as to give undue preference or disadvantage to persons or traffic similarly circumstanced, the act to regulate commerce leaves common carriers as they were at the common law, free to make special contracts looking to the increase of their business, to classify their traffic, to adjust and apportion their rates so as to meet the necessities of commerce, and generally to manage their important interests upon the same principles which are regarded as sound, and adopted in other trades and pursuits.

Statement of the Case.

ON October 18, 1889, the James and Mayer Buggy Company, a corporation of the State of Ohio, and doing business at Cincinnati, filed a complaint before the Interstate Commerce Commission against the Cincinnati, New Orleans and Texas Pacific Railway Company, the Western and Atlantic Railroad Company and the Georgia Railroad Company, alleging that said defendants were common carriers "under a common control, management or arrangement for continuous carriage or shipment," and charged the same rate for transporting vehicles shipped by the complainants from Cincinnati, whether shipped to Atlanta, Georgia, a distance of about 474 miles, or to Augusta, Georgia, a distance of 645 miles, and charged 30 cents per hundred pounds more on such vehicles 77 71 shipped to Social Circle, Georgia, than when shipped to either Atlanta or Augusta.

The Cincinnati, New Orleans and Texas Pacific Railway extends from Cincinnati to Chattanooga, Tennessee; the road of the Western and Atlantic Railroad Company begins at Chattanooga and extends to Atlanta; and that of the Georgia begins at Atlanta and ends at Augusta. These respondents filed answers, from which, and from the allegations of the complaint, it appeared that the complainants shipped their goods, at first class rates, by through bills of lading, from Cincinnati to Atlanta, to Social Circle, and to Augusta; that through rates, of $1.07 per hundred pounds, were charged to both Atlanta and to Augusta, of which the Cincinnati, New Orleans and Texas Pacific Railway Company received 55 cents; the Western and Atlantic, 22 cents; and the Georgia Railroad Company, 28, cents. Social Circle is a local station on the Georgia Railroad, 52 miles east of Atlanta, and 119 miles west of Augusta. When goods were shipped to Social Circle the complainants had to pay $1.37 per hundred pounds, of which 75 cents went to the Cincinnati, New Orleans and Texas Pacific company, 31 to the Western and Atlantic and 30 cents to the Georgia-the said amount of 30 cents per hundred pounds being the local charge made by the Georgia company on similar freight carried by it from At

lanta to Social Circle.

6433 474

Statement of the Case.

The complainants contended that as the rate to Augusta was $1.07 per hundred pounds, that charge was excessive when made against similar freight carried to Atlanta, which is 171 miles nearer to the point of shipment. They also contended that the charge of $1.37 to Social Circle was excessive and undue, as the defendants carried similar freight for $1.07 to Augusta, a greater distance of 119 miles.

The respondents claimed that they were justified in charging the same rate to Augusta as to Atlanta, because the former was a competitive point; and as to the rates to Social Circle, they claimed that the goods were not carried to that point under a common control, management or arrangement for continuous carriage or shipment, but that the additional 30 cents per hundred pounds was the local charge for similar service by the Georgia company, and that, therefore, the case of goods carried to Social Circle was not within the provisions of the act to regulate commerce.

The controversy before the Commission resulted in an order, requiring the defendants to cease and desist from making any greater charge in the aggregate on buggies, carriages and other freight of the first class, carried in less than carloads from Cincinnati to Social Circle, than they charged on such freight from Cincinnati to Augusta, and to cease and desist from making any charge for the transportation of such freight from Cincinnati to Atlanta in excess of $1 per hundred pounds. This order was dated June 29, 1891, and was to operate from July 20, 1891.

The defendants having refused to obey this order and failed to alter or modify their charges, the Interstate Commerce Commission filed a bill or petition in the Circuit Court of the United States for the Northern District of Georgia, seeking to enforce the said order.

To this bill the Louisville and Nashville Railroad Company and the Central Railroad and Banking Company of Georgia. filed a joint and several answer, in which they alleged that the said companies jointly operated the railroad from Atlanta to Augusta as assignees of one William Wadley, to whom that road had been previously leased by "the Georgia Rail

Statement of the Case.

road and Banking Company," a corporation of the State of Georgia, and that they so operated said railroad under the adopted name of the "Georgia Railroad Company," but that there was no such corporation as the "Georgia Railroad Company." This answer further denied the allegation of the petition of the Commission in so far as they charged that rates charged by them were undue or excessive, or in disregard of the provisions of the act to regulate commerce.

An answer was filed by the Cincinnati, New Orleans and Texas Pacific Railway Company, traversing the allegations of the bill, so far as it alleged the charging of undue or unreasonable rates to Atlanta or to Social Circle. The Western and Atlanta Railroad Company set up in its answer that it had no existence as a corporation at the time of the proceedings before the Interstate Commerce Commission, and had no connection with the matters therein complained of, and therefore prayed that, as against it, the petition of the Commission should be dismissed. (This position was subsequently abandoned.)

Under the issues thus formed a considerable amount of testimony was taken; the cause came on to be heard, was argued by counsel, and thereupon, on June 5, 1893, the court, holding that the matters of equity alleged in the bill were fully denied in the answers, and were not sustained by the proof, decreed that the bill be dismissed.

From this decree an appeal was taken to the United States Circuit Court of Appeals for the Fifth Circuit, and was there so proceeded in that on May 27, 1894, the decree of the Circuit Court was reversed, 13 U. S. App. 730, and the cause was remanded to that court with instructions to enter a decree in favor of the Interstate Commerce Commission and against the defendants, commanding the latter to cease and desist from making any greater charge in the aggregate on buggies, carriages and on other freight of the first class carried in less than carloads, from Cincinnati to Social Circle than they charged on such freight from Cincinnati to Augusta.

Appeals were taken from this decree and errors assigned respectively by the defendants and by the Commission.