ance of the credible evidence. Louis. & Nash. R. R. v. Jones, 83 Ala., 376. Ford v. Chambers, 19 Cal., 143. Treadwell v. Whittier, 80 Cal., 574. Williams v. Watson, 34 Mo., 95. Strauss v. Field, 90 N. Y., 640. Crabtree v. Reed, 50 Ill., 206. McDeed v. McDeed, 66 Ill., 545. Graves v. Cowell, 90 Ill., 612. To instruct a jury that they must be conclusively convinced is a manifest error. Hiester v. Laird, 1 W. & S., 245.

In the case in hand it was only necessary for the petitioners to show by a preponderance of proof that the rate in the past—as it was found by the Commission that it would be for the future-was not a just or reasonable rate; and if they did this, it was all that could be required of them. No doubt the Commission had the right to call for proof that was reasonably convincing. But it had no right to array itself against that which was produced, to the extent of holding that it was not conclusive; which was in effect saying that nothing short of what was incontrovertible would satisfy it.

Nor can this be passed over as an inadvertence or as meaning no more than that the evidence so far as concerned the past was not satisfactory. If this was all there was to the case of course nothing could be made of it. But by the petition for a rehearing and the argument that was made in that connection the attention of the Commission was directly called to the effect of the ruling, and after due consideration it was adhered to. If therefore the matter was left in any doubt by the original

report there can be none by the later one. By the express reiteration of the former ruling it was thereby declared, not that the evidence was not satisfactory or unconvincing, but that it was not conclusive, and that none other would be sufficient. This was asking more of the petitioners than was warranted, and the action of the Commission in refusing reparation as to the past upon that ground is invalid.

It is said, however, that the question of reparation was reserved for further consideration, and that there is therefore nothing final. But according to the report the only reservation was of the question of law as to the amount of reparation to which the parties were entitled under the ruling made, which in no respect relieves the situation. As already said in the Russe & Burgess case the petitioners were entitled to have the resaonableness or unreasonableness of the rate in controversy considered and determined fairly and squarely upon the merits, unhampered by any misconception as to the extent or character of proof required of them, and they are now entitled to be relieved from the adverse result under which they rest, which has been brought about by the error complained of. As the case stands they have applied for relief and been put off with only a part of that which they claim, the rest having been ruled out on a clear misapprehension.

The demurrer is overruled with leave to the respondents to answer over.

United States Commerce Court.

APRIL TERM, 1911.

GOODRICH TRANSIT COMPANY, PETITIONER,

v.

THE INTERSTATE COMMERCE COMMISSION, No. 21. respondent. The United States, inter

vening respondent.

GOODRICH TRANSIT COMPANY, PETITIONER,

v.

THE INTERSTATE COMMERCE COMMISSION, No. 22. respondent. The United States, inter

Interstate Commerce Commission, in

tervening respondent.

RALPH M. SHAW, solicitor for petitioners.

J. A. FOWLER, Assistant Attorney General, and CHARLES W. NEEDHAM, Solicitor for Interstate Commerce Commission, for respondents.

48250 S. Doc. 789, 62-2-19

289

Before Knapp, Presiding Judge, and Archbald, Hunt, Carland, and Mack, Judges.

HUNT, Judge:

[OCTOBER 5, 1911.]

No. 21.

The Goodrich Transit Co., a corporation organized under the laws of Maine, filed this bill in equity on December 29, 1910, in the Circuit Court of the United States for the Northern District of Illinois, eastern division, to obtain an injunction against the enforcement of certain orders of the Interstate Commerce Commission. For the sake of brevity, we will hereafter refer to the Goodrich Transit Co. as the transit company, and to the Interstate Commerce Commission as the commission.

It appears from the bill that the transit company has its principal operating office in Chicago, Ill., and since its organization in 1906 has been engaged in the transportation of passengers and freight on Lake Michigan, Lake Huron, and the rivers tributary thereto. It owns and operates steamers and dock properties in Illinois, Wisconsin, and Michigan, several of such dock properties being near the mouths of rivers. The docks are used as landing places, where freight and passengers are discharged and taken off. The steamers carry passengers and freight originating at ports of the States of Michigan, Wisconsin, and Illinois, and destined to ports in each of the said States. This transportation is entirely by water and unconnected with any land

transportation whatever, and is spoken of as "portto-port" interstate business. The transit company's steamers also carry passengers and freight originating at and destined to ports in the same State, and not passing out of said State en route, and this business is spoken of as "port-to-port" intrastate business.

The bill alleges that the transit company had voluntarily agreed with some of the interstate railroad carriers of the United States to establish certain through routes over which passengers and freight were being carried under joint tariffs, and that for the purpose of establishing such through routes it had voluntarily filed with the commission its joint tariffs or its concurrence in tariffs filed by such railroad carriers, and that the transit company's steamers carry for hire passengers and freight under said joint tariffs over the water portion of said through routes. It is alleged with some detail that the principal part of the business of the transit company is derived from its port-to-port and intrastate business and that competition is active and open to any who may desire to engage in such business, which includes the privilege of the use of docking and terminal facilities. The bill alleges that on June 11, 1910, the commission entered the following order:

It is ordered, That Special Report Series Circular No. 10, prepared under the direction of this Commission by Henry C. Adams, in charge of Statistics and Accounts, be, and the same is hereby, approved;