supra; Hoge v. R. R. Co., 99 U. S., 348; Charlotte, etc., R. R. Co. v. Gibbes, 142 U. S., 390; R. R. Co. v. Bristol, 151 U. S., 556.

This action upon the part of the State does not impair the obligation of a contract.

This leads to the second Federal question.

Is the rate fixed by the Corporation Commission unreasonable? If so, this court can declare them invalid. Smyth v. Ames, 169 U. S., 526.

There are many affidavits in this record bearing upon this question. No issue can be decided by affidavit with any degree of satisfaction. Before coming to any conclusion the Court needs the aid of a reference. Let an order be entered referring it to E. S. Martin, Esq., as Special Master, (the Standing Master being in this behalf disqualified), instructing him to inquire into the rates prescribed for the carriage of fertilizers and all facts bearing thereon, and specially as to their reasonableness, with leave to report any special matter.

(Signed) CHARLES H. SIMONTON, Circuit Judge.

31st October, 1899. Case now pending.

SEPARATE ACCOMMODATIONS FOR THE WHITE AND COLORED RACES ON PASSENGER TRAINS.

At a session of the Commission on April the 27th, 1899, a letter was addressed to all the transportation companies in the State, as follows:

"Your attention is called to that part of the Act of the General Assembly of 1899, being 'An Act to promote the comfort of travelers on railroad trains and for other purposes, known as the Separate Car Act, which reads as follows: That all railroad companies and steamboat companies engaged as common carriers in the transportation of passengers for hire in the State of North Carolina other than street railways shall provide separate but equal accommodations for the white and colored races on all passenger trains and steamboats carrying passengers. Such accommodations may be furnished by railroad companies either by separate passenger cars or by compartments in passenger cars, which shall be provided by the railroads under the supervision and direction of the Board of Railroad Commissioners or the officers succeeding to their powers: Provided, that this shall not apply to relief trains in cases of accident, to Pullman or sleeping cars or through express trains that do not stop at all stations and are not used ordinarily for traveling from station to station, to negro servants in attendance on their employers, to officers or guards transporting prisoners, nor to prisoners so transported.

“The Railroad Commissioners of this State or the officers succeeding to their powers are hereby authorized to exempt from the provisions of this Act branch lines and narrow-gauged railroads if in their judgment the enforcement of this Act be unnecessary to secure the comfort of passengers by reason of the light volume of passenger traffic or the small number of colored passenger travelers on such narrowgauged or branch lines.'

The Commission will, at its session on May the 8th next, take into consideration the matter of enforcing the provisions of this Act, and will, on that day, hear from any road that desires to be heard touching the matter."

On the day appointed for a hearing nearly every road in the State was represented, either in person or by petition, asking for relief from the provisions of the Act for certain trains, and in most instances for all trains, upon the ground that the travel of both the white and colored races was quite small on certain trains and in certain sections, and that the revenue was inadequate and the expense of preparing cars for a division of the races would be great.

After

Some two days were consumed in the hearing, taking of testimony, etc. mature deliberation, the Commission was of the opinion that all of the roads that came under the rovisions of the Act above mentioned should comply with the same on or before June the 1st, 1899, with the exception of the Western North Carolina Railroad from Asheville to Murphy, and the several miscellaneous and branch roads on which only mixed trains are run.

DECISIONS

AND

ADJUSTMENT OF COMPLAINTS

WILMINGTON TARIFF ASSOCIATION

vs.

SOUTHERN RAILWAY AND ATLANTIC COAST LINE.

This was a petition and complaint filed by Jas. Kyle, Manager of the Wilmington Tariff Association,against the Southern Railway and Atlantic Coast Line,asking the Commission to remove the existing discrimination in class rates to North Carolina points now in favor of Norfolk and other Virginia commercial points to the detriment of Wilmington-alleging as follows:

That Wilmington is by reason of location and commercial importance the natural distributing point of North Carolina, and as such is entitled to more than ordinary consideration in the matter of freight rates and other transportation facilities. The rates at present in effect, however, to points in North Carolina on the Southern Railway are such as to discriminate against Wilmington in favor of Virginia points to such an extent as to debar the merchants of Wilmington from doing business in the territory mentioned which should be by reason of location naturally controlled by Wilmington. The territory to which we refer is that on the Southern Railway between Greensboro and Charlotte, Greensboro and Wilkesboro, Winston and Mocksville, High Point and Asheboro, Salisbury and Norwood and Salisbury and Asheville. The freight rates from Richmond and Norfolk to these points are lower than from Wilmington, although Wilmington is nearer than either of the Virginia points mentioned. Wilmington, under the present adjustment of interstate rates, is compelled to pay a higher rate of freight in order to receive its supplies, and is also compelled to pay a higher rate than the Virginia points to the points of distribution in North Carolina as mentioned in this petition. Under such circumstances it is impossible for our merchants to do business in the central and western portions of the State. The adjustment of rates from Wilmington to the territory indicated, making our rates the same as those in effect from Virginia cities, would afford considerable relief to our merchants and at the same time result in a proper and just adjustment of the rates themselves. It is inexplicable to us how the railroads operating can under such circumstances insist on charging us more than they do points outside of our State which are a greater distance from the points of destination than our city, especially in view

of the fact that the points which they favor are now enabled to receive their supplies from the West and North at considerably less rates than ours. I have not enumerated these rates to the various points, but if the Commission desires at the time of hearing, will present authorized tariffs supporting our petition in the event that the defendants deny the correctness of our statements. The petitioners therefore petition the North Carolina Corporation Commission in justice to our city to issue an order requiring that the same freight rates be issued from Wilmington to the territory embraced in this petition as are now made effective from Virginia commercial points.

We do not ask that the rates from Wilmington be reduced, provided the railroads will instead increase the rates from Virginia commercial points to the same as are now charged us, in other words, we are not seeking to reduce or break down the present rates but simply desire that we be placed on the same basis of equality as our commercial rivals in Virginia.

Copy of complaint was served on defendants with notice of hearing.

At a session of the Commission at Raleigh, May 8, 1899, this case was called, and letter was read from complainants stating that defendants had granted the relief demanded, and asked leave to withdraw complaint, which was granted.

Fertilizer Rates.

At the session of the Commission on April 5, 1899, Col. John S. Cunningham, President of the State Board of Agriculture, appeared and asked that the matter of fertilizer rates be considered and a day fixed for a hearing.

Thereupon, the Commission, on April 10, 1899, addressed a communication to the various roads in the State to the effect that on April 24, 1899, the matter of reducing the carload minimum on fertilizers from fifteen to ten tons would be taken into consideration. On April 17th and 19th, respectively, the State Board of Agriculture and the North Carolina Farmers' Alliance filed their written complaints, alleging as follows:

"That the defendants are common carriers engaged in the transportation of passengers and property between points in North Carolina, and as such common. carriers are subject to the act of the General Assembly to establish the North Carolina Corporation Commission providing for the general supervision of railroads, steamboats and canal companies, express and telegraph companies, doing businesg in the State of North Carolina.

"That the defendants had increased the tonnage or minimum carload on fertilizers from 10 tons to 15 tons minimum, and that the said increase worked a hardship on the farmers of the State and the small dealers, and the interest of such farmers and dealers required a reduction from 15 tons of fertilizer to 10 tons minimum."

The petitioners asked that the defendants be required to reduce the carload minimum on fertilizers from 15 tons to 10 tons minimum, and otherwise revise the schedule of rates.

On April 24, 1899, the day set for the consideration of the subject matter of the complaint, Traffic Managers of the Atlantic Coast Line system of roads, Southern Railway, Seaboard Air Line system of roads, and other roads in the State, appeared before the Commission and were heard at length. Complainants were represented by R. H. Battle, Attorney; John S. Cunningham, President of the State Board of Agriculture, and T. B. Parker, State Agent of the North Carolina Farmers' Alliance.

The Commission, after hearing argument by the representatives of the various roads and of the plaintiffs, after careful consideration, granted the relief demanded by petitioners in an order which reads as follows: