a plan devised by expert accountants. The computations, with respect to the St. Louis Southwestern company, were based upon the operations of October, 1908, as the company had compiled data for that month in making a test of comparative cost. According to these calculations of the defendants, the net return from the entire intrastate business was at the annual rate of 7.09 per cent. for the Iron Mountain road, and 9.16 per cent. for that of the. St. Louis Southwestern.

It was objected, however, that the periods selected for these tests were not representative; that the month of October, 1907, in particular, was abnormal because of an unusual congestion of traffic, and that the use of the statistics for October, 1908, was also open to objection as they did not show such a fair average of the business as would enable the court to reach a correct conclusion. The court below took this view, but it was of the opinion that proper allowances might be made which would equalize these conditions. In this view, and for the purpose of correcting assumptions deemed to be erroneous, the court defined the basis of apportionment of the various items of outlay in accordance with which new computations were made. The effect of these calculations was to charge the intrastate freight traffic on the Iron Mountain road with an extra cost of 201.5 per cent. per ton mile. The court, concluding that certain items of the extra cost of local traffic had been omitted, decided that an additional charge of 8.5 per cent. would be reasonable, and that the total extra cost of the intrastate traffic should be placed at 210 per cent. In the case of the St Louis Southwestern company, the extra cost of the intrastate freight traffic was fixed at 250 per cent., this being, it is understood, per ton-mile. With respect to the passenger traffic, the court was of the opinion that the intrastate service should be charged with ten per cent. additional cost in the case of the Iron Mountain company, but that no allowance for extra cost was

necessary in that of the St. Louis Southwestern Company. From the computations on these bases the conclusion was derived that the net return from the entire intrastate business of the Iron Mountain company was at the annual rate of less than one per cent., and from that of the St. Louis Southwestern company, 2.6 per cent., upon the shares of the total property value assigned respectively to the intrastate business.

We shall not attempt to review in detail these calculations upon which the decree is based. While they represent a most serious effort to effect a reasonable apportionment, we are convinced, from our examination of the evidence, that they have the same infirmity which was found to exist in the computations in the Minnesota and Missouri rate cases. Minnesota Rate Cases, ante, p. 352; Missouri Rate Cases, ante, p. 474, decided this day, ante, p. 474. On finding, in the present cases, that the periods selected for the purposes of test could not be regarded as fairly representative, the court was left without sufficient data upon which to compute the extra cost of intrastate transportation with such a degree of certainty as would justify the annullment of the State's requirements. Controlling factors, used in the computations, represent general estimates of the conditions of transportation, which may or may not be accurate, and there was an absence of satisfactory evidence, to take the place of the rejected tests, giving with requisite particularity the actual movement of traffic at the times in question and affording a proper basis for the determination of relative cost. The wide variation in results obtained on the different hypotheses, each of which is earnestly supported in argument, illustrates the necessity for the keeping of suitable accounts, at least during typical periods, which will furnish correct statistical information bearing upon the cost of intrastate transportation as compared with interstate, instead of leaving a matter of such in

tricacy to general expressions of judgment. It was not sufficient for the complainants to criticise the tests relied upon by the defendants, but in seeking to override the action of the State upon constitutional grounds it was incumbent upon them to establish the invalidating facts by definite and convincing proof.

We are of the opinion that the evidence failed to show confiscation.

The decrees are reversed and the cases remanded with directions to dismiss the bills, respectively, without prejudice.

CIVIL RIGHTS ACT of March 1, 1875, 18 Stat. 335, c. 114 (see Civil
Rights Act): Butts v. Merchants & Miners Transportation Co., 126.
DISTRICT OF COLUMBIA.-Act of March 3, 1901, 31 Stat. 1189, c. 854
(see District of Columbia): Nalle v. Oyster, 165.

EMPLOYERS' LIABILITY ACT of 1906 (see Civil Rights Act, 3): Butts v.
Merchants & Miners Transportation Co., 126.

INTERSTATE Commerce Act.—(See Interstate Commerce): Minnesota
Rate Cases, 352; Pennsylvania R. R. Co. v. International Coal Co.,
184; Omaha Street Ry. Co. v. Interstate Com. Comm., 324; Mitchell
Coal Co. v. Pennsylvania R. R. Co., 247; Fourche River Lumber Co.
v. Bryant Lumber Co., 316. (See Rate Regulation): Minnesota Rate
Cases, 352. (See Statutes, A 2): Omaha Street Ry. Co. v. Interstate
Com. Comm., 324. Act of June 29, 1906, 34 Stat. 584, c. 3591
(see Interstate Commerce, 8, 16): Morrisdale Coal Co. v. Pennsyl-
vania Coal Co., 304; Pennsylvania R. R. Co. v. International Coal
Co., 184. Act of June 18, 1910, 36 Stat. 539, c. 309 (see Interstate
Commerce, 5): Omaha Street Ry. Co. v. Interstate Com. Cɔmm., 324.
JUDICIARY.-Judicial Code of 1911, §§ 14, 21 (see Appeal and Error;
Courts, 1, 2, 3; Mandamus, 2): Er parte American Steel Barrel

VOL. CCXXX-36

(561)

Co., 35. Act of March 3, 1891, § 5, 26 Stat. 826, c. 517 (see Juris-
diction, A 2, 3, B): Boise Water Co. v. Boise City, 84, 98. Act of
April 7, 1874, 18 Stat. 27, c. 80 (see Jurisdiction, A 4): Ochoa v.
Hernandez, 139.

PORTO RICO.-Foraker Act of April 12, 1900, 31 Stat. 77, c. 191 (see
Jurisdiction, A 4; Porto Rico, 3): Ochoa v. Hernandez, 139.

AMENDMENTS TO CONSTITUTION.

Fifth. See CONSTITUTIONAL Law, 11;

LEVEES, 3, 6.

Fourteenth.-See CONSTITUTIONAL LAW;

RATE REGULATION, 24, 26, 41, 42.

APPEAL AND ERROR.

To review order or decree of judge designated under §§ 14 and 21, Judicial
Code.

The authority of a judge, whose attempted designation under §§ 14
and 21 of the New Judicial Code is beyond the judicial power of
the senior circuit judge, may be excepted to, and order or decree
made by him while acting under such designation may be re-
viewed in due course of law. Ex parte American Steel Barrel Co.,
35.

See BILL OF EXCEPTIONS;

JURISDICTION;

PRACTICE AND PROCEDURE, 2;
DISTRICT OF COLUMBIA, 1, 2.

BILL OF EXCEPTIONS.

Exceptions; functions of; necessity for exception for purposes of review.
Error appearing on the face of the record may be assigned as ground

for reversal, although no exception be taken; nor is the function of
an exception confined to the trial of the action but extends to all
the pleas, challenges and evidence. Nalle v. Oyster, 165.

BRITISH STATUTES.

See DISTRICT OF COLUMBIA, 1.

BURDEN OF PROOF.

See LIBEL, 1.

CAR DISTRIBUTION.

See INTERSTATE Commerce, 6, 7, 8.

CARRIERS.

Duty to shipper as to transportation.

A common carrier is not at liberty to accept or decline shipments of