any other causes increasing the cost of the haul over the cost from other points within this State, as compared with this haul. In the haul from the Southern fields there is a grade of considerable proportion to the top of the Divide at Palmer Lake, being something like 2,000 feet of elevation over which the traffic must be hauled, and down again into the city of Denver.

The Colorado & Southern Railway Company, being the only defendant herein whose line reaches the Northern coal fields, and at the same time with another branch reaching the Southern fields, is in a peculiar position of charging its patrons in the north for a practically level haul something more than three cents per ton per mile, and at the same time in the south charging less than one cent per ton per mile.

It is contended by defendants that the burden of proof is on petitioners to show there is no greater cost of operation, and no other reason why the tariff in question should be higher than the other rates with which it is compared, following the rule of the burden of proof in civil cases.

In the opinion of the Commission, while it may be, as it is ably said in Dallas Freight Bureau vs. M., K. & T. Ry. Co. et al., I. C. C., 949, that "Ordinarily, complainants must either prove the issues that they raise by competent testimony, or make out a prima facie case sufficiently clear and strong az !... require the Commission in the public interest to enter upon an investigation of its own to ascertain the merits of the complaint." However, in this case, The Colorado & Southern Railway Company has different branches, one running into each district, the Northern and the Southern, and this question was considered by the Interstate Commerce Commission in a case based on similar facts, as is shown here. The Commission therein says:

"The question was considered by the Interstate Commerce Commission in connection with the rates for the carriage of shingles from Ft. Fairfield and Frederickton, respectively, to Boston. The two places in question were situated on different branches of the same railroad. Mr. Commissioner Veazy said: 'A departure from equal mileage rates on different branches or divisions of a road is not conclusive that such rates are unlawful, but the burden is on the company making such departure to show its rates are reasonable when disputed.'

*

*

Beale & Wyman on R. R. Rate Regulations, sections

8,
8. 47.

It was strongly contended by defendants that the burden of proof was on the petitioners; that they had not sufficiently offered proof of investments, expenses, and other matters, showing cost of service, to sufficiently enlighten the Commission as to a fair comparison of the rates complained of with other rates.

These matters were particularly within the knowledge of the defendants, and if defendants believed that there was evidence

that was essential to the correct determination and a clear understanding of the reasonableness of this rate, this information being readily accessible to them, they should have presented it.

Witnesses were introduced to show that there was a charge of 25 cents per ton in the Denver yards on the haul from Louisville to Denver, and that this charge was absorbed by the road originating the traffic, necessarily reducing the net profit per ton. The general freight agent of the Denver & Rio Grande Railroad testified that from 20 to 25 cents per ton was a very reasonable charge. One witness for petitioner testified that he had been in active management of the Denver & Rio Grande Railroad and of the Rio Grande Western from 1884 to 1901; that $2.00 per car would be a very reasonable switching charge; that 40 cents per ton would be a reasonable rate on a haul of the character in question; that he took into consideration cost of investment, the character of the same, expense of operation, interest charge, wages, etc.

The general freight agent of the Chicago, Burlington & Quincy Railroad testified that after the switching charges were absorbed his road averaged only 64 cents per ton for this haul for the year 1908, and 56 cents for 1909.

The freight traffic manager of the Union Pacific Railroad at Omaha testified that the rates for switching at the present time in Chicago were $2.00 per car, minimum charge.

The record in this case covers 177 pages of typewritten matter, about five days being consumed in taking the evidence. The Commission, realizing the importance of questions involved herein, has gone into this matter very fully, and, after due consideration, the Commission is of the opinion that the present rate of 80 cents per ton on lump coal from Louisville to Denver is too high.

In Northern Coal & Coke Co. vs. Colorado & Southern Railway Company, I. C. C., No. 959, the rate between these same points was attacked, the Commission saying: "The local rate of 80 cents per net ton on lignite coal from Louisville to Denver, as applied on through traffic to the Rock Island points referred to, is unjust and unreasonable."

Defendants admitted that the rate was too high, and offered to publish a proportional rate of 50 cents per ton on through traffic. The Commission said that was still too high, and ordered the same reduced to 40 cents per ton for that portion of the haul, but left the same to be apportioned among the different roads as they deemed proper.

This Commission is of the opinion that 55 cents would be a reasonable and a remunerative rate for said service in question. Upon the foregoing findings of fact:

ORDER.

It is ordered that the defendants and intervenors, The Colorado & Southern Railway Company, The Chicago, Burlington & Quincy Railroad Company and The Union Pacific Railroad Company, be and they are hereby severally notified to cease and desist on or before the 10th day of May, 1910, and during a period of two years thereafter, abstain from charging, demanding, collecting or receiving for the transportation of lump, mine run or slack coal from mines on defendants' and intervenors' lines, in and around Louisville, Lafayette, Marshall, Erie, and the Dacono, Frederick district, in the counties of Boulder and Weld, and in what is known as the Northern Colorado Coal Fields, to Denver, in the State of Colorado, their present rates of 80 cents per ton on lump coal, car load, and of 70 cents per ton on mine run, car load, and 60 cents per ton on slack, car load; and to publish and charge on or before the 10th day of May, 1910, and during a period of at least two years thereafter collect and receive, from said mines to Denver, and for the transportation of lump coal from said mines to Denver, a rate not exceeding 55 cents per ton, car load, and on mine run coal a rate not exceeding 50 cents per ton, car load, and on slack coal a rate not exceeding 45 cents per ton, car load, and said defendants are hereby authorized to make said rates effective upon three days' notice to the public. and to the Commission.

By order of the Commission:

(Signed)

AARON P. ANDERSON,
DANIEL H. STALEY,

WORTH L. SEELY,

Commissioners.

Dated at Denver, Colorado, this 4th day of April, 1910.

BEFORE THE

STATE RAILROAD COMMISSION OF COLORADO.

Case No. 23.

THE CONSUMERS' LEAGUE OF COLORADO, A CORPORATION,

PETITIONER,

VS.

THE COLORADO & SOUTHERN RAILWAY COMPANY, THE DENVER & RIO GRANDE RAILROAD COMPANY, AND THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, RESPONDENTS.'

Submitted March 23, 1910.

Decided April 4, 1910.

FINDINGS AND ORDER OF THE COMMISSION.

On December 6, 1909, the petitioner filed its petition herein, in which it alleges that petitioner is a corporation, etc.; that the several defendants are engaged in the transportation of freight wholly by railroad within the State of Colorado; that said defendants charge and collect on a shipment of coal from Louisville, Colorado, to Littleton, as follows: On lump coal, $1.80 per ton; on mine run, $1.70 per ton, and on slack, $1.60 per ton. That said rates charged and collected are unjust, unreasonable and exorbitant; that the following rates would be reasonable and just: Lump coal, 70 cents per ton; mine run coal, 65 cents per ton, and slack coal, 60 cents per ton. That an order be entered by the Commission fixing just and reasonable rates as maximum rates to be collected.

On December 24, 1909, and December 27, 1909, the defendants, respectively, filed their answers; the Denver & Rio Grande Railroad Company alleging that the State Railroad Commission of Colorado has no authority in law to require defendant to answer or to comply with any order herein or otherwise; that the act under which this Commission is acting is unconstitutional. It admits that it is a common carrier; alleges that it charges for the transportation of coal in car load lots $1.00 per ton, Denver to Littleton, whether originating in Louisville or elsewhere; de

nies that the rate so charged is either unjust, unreasonable or exorbitant; denies the right of petitioner to complain in the manner set forth in said petition, or otherwise; denies that said petitioner has legal capacity to file said petition, and asks that the complaint be dismissed.

The separate answers of The Colorado & Southern Railway Company and The Atchison, Topeka & Santa Fe Railway Company allege that petitioners are not proper parties and have no authority to bring this action, and in all other matters the said answers are practically the same as that of The Denver & Rio Grande Railroad Company.

The hearing was had in this case March 7, 1910. Mr. Albert L. Vogl and Mr. Robert Given appeared for petitioner; Mr. E. E. Whitted for The Colorado & Southern Railway Company; Mr. E. N. Clark for The Denver & Rio Grande Railroad Company; Mr. G. A. H. Fraser for The Atchison, Topeka & Santa Fe Railway Company.

By agreement of counsel this case was heard with Case No. 22.

PARTIES.

The question raised by the answer of defendants herein as to the right of petitioner to bring this action has been fully discussed and disposed of by the Commission in Case No. 22.

JURISDICTION.

This Commission holds now, as it has heretofore held, that it has jurisdiction to hear and determine cases of the nature of the present one before the Commission.

FINDINGS OF FACT.

We shall now consider the merits of this case. The rate complained of is the rate on coal from Louisville or the Northern Colorado coal fields to Denver, a distance of something over twenty miles. The present rate attacked is the rate of 80 cents from Louisville to Denver, and then $1.00 from Denver to Littleton. The same witnesses appeared in this case as were heard in Case No. 22, the two cases being tried together. The Commission in Case No. 22 has already made an order reducing the rate between the Northern coal district and Denver from 80 cents to 55 cents on lump coal, and from 70 cents to 50 cents on mine run coal, and from 60 cents to 45 cents on slack coal.