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filed. The petitioners are entitled to go back of that, so far at least as concerns the proceedings before the Commission, until barred by the statute; and to have the merits of their claim considered and passed upon unhampered by any mistaken view to the contrary. The petition therefore on its face sets forth a good case for relief, and there is no ground for the demurrer.

The demurrer will be overruled and the respondents directed to answer over.

United States Commerce Court.

No. 19.-OCTOBER SESSION, 1911.

THOMPSON LUMBER COMPANY

v.

INTERSTATE COMMERCE COMMISSION, RESPONDENT; AND UNITED STATES, AND ILLINOIS CENTRAL RAILROAD COMPANY, INTERVENERS.

ON DEMURRER TO PETITION.

For opinion of Interstate Commerce Commission see 13 Inter. Com. Com. Rep., 657.

Mr. W. A. Percy for petitioners.

Mr. P. J. Farrell for Interstate Commerce Commission.

Mr. James A. Fowler, assistant to the Attorney General, and Mr. Blackburn Esterline, special assistant to the Attorney General, for the United States.

Mr. R. Walton Moore and Mr. Frank W. Gwathmey for Illinois Central Railroad Company.

Before KNAPP, Presiding Judge, and ARCHBALD, HUNT, CARLAND, and MACK, Judges.

[FEBRUARY 13, 1912.]

ARCHBALD, Judge:

This case does not differ in principle from that of Russe & Burgess just decided. Indeed the two are linked together by the Commission, the decision in the one on the subject of laches being given as a reason for the decision in the other.

The rate complained of before the Commission was that on hardwood lumber from Memphis to New Orleans for export. The rate charged was twelve cents a hundred pounds, and complaint was made against the Illinois Central Railroad, the Yazoo & Mississippi Valley Railroad, and the St. Louis, Iron Mountain & Southern Railroad, these being the three lines by which shipments of such lumber are made between the points mentioned at the rate in question. The Commission dismissed the complaint as to the St. Louis, Iron Mountain & Southern, but held that as to the Illinois Central and the Yazoo & Mississippi Valley the twelve-cent rate was unreasonable, ten cents per hundred pounds being fixed as the maximum. The Yazoo & Mississippi Valley was not served in the present case and has not appeared, and the case therefore proceeds only against the Illinois Central.

As to the reparation claimed on the ten-cent basis, the Commission said:

"We can not award damages in this case based upon the use of the twelve-cent rate up to the date of the filing of the complaint because of the laches of the complainants and because the record does not conclusively disclose that the rate was unreasonable prior to said date. The questions of law as to the reparation and the amount thereof under the above ruling will be reserved for consideration at a later date."

Not satisfied with the situation in which the case was so left, the petitioners applied for a rehearing and modification of the order, assigning among other things that the Commission erred in the ruling made, it being urged in that connection in the brief filed that there was no place for the application of the doctrine of laches, nor for any limitation other than that imposed by the statute, and that in holding the petitioners to conclusively prove the unreasonableness of the rate prior to the filing of the complaint the Commission was enforcing a degree of proof not justified upon any principle. But notwithstanding this, and with its attention thus called to the matter, the Commission in a further report declined to modify the order. The present bill was then filed, the same as in the Russe & Burgess case, in the Circuit Court of the United States for the Northern District of Illinois, and after the same intermediate proceedings comes up now on demurrer by the Interstate Commerce Commission joined in by the United States and the Illinois Central Railroad intervening.

Nothing need be added to what is said in the Russe & Burgess case on the subject of laches. So far as the action of the Commission in refusing complete reparation is based on the application of that doctrine to shipments which preceded the filing of the complaint, it is clearly invalid.

6

The other ground assigned by the Commission for its action, in our judgment, is equally untenable. To require conclusive proof of the unreasonableness in the past of the rate complained of was to set up a standard which is exacted, if ever, in only the most extreme cases. "Where an adverse presumption is to be overcome, or, on grounds of public policy and in view of peculiar facilities for perpetrating injustice by fraud and perjury, a degree of proof is sometimes required which is variously designated as 'clear,' 'clear and conclusive,' 'clear, precise, and indubitable,' 'convincing,' unequivocal,' &c." 17 Cycl., 771. Conclusive evidence is that which is incontrovertible-that is to say, either not open or not able to be questioned. Wood v. Chapin, 19 N. Y., 509, 515. Where it is said that a thing is conclusively proved, it means that that result follows from the facts shown as the only one possible. People v. Stephens, 13 N. Y., Supp., 1112, 1114. Conclusive proof means either a presumption of law, or evidence so strong as to overbear everything to the contrary. Haupt v. Pohlman, 24 N. Y. Sup. Ct., 121, 127.

In a civil action the complainant is never bound to do more than sustain his case by a preponder

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