The Birmingham age-herald., 1912-04-11
Opinion of Judge Thomas c. Jones
 In Annulling State Rate Laws

| substantial reasons bur of fanciful, i'm material and even impossible data The ordinary and general rule Is that nega-
 tive averments in pleading do not have to be proved by the plaintiff unless his cause of action is founded on and grows out Of the negative allegation, and then l the plaintiff has only to establish ms laverment by the usual measure of proof
 required in civil suits according to the nature of the issue Greenleaf EVid. Secs. 7S-S0. In such cases the plaintiff lcertainly cannot be required to nega- tive beyond reasonable doubt" eith- CT all or any immaterial or all or any impossible facts.
 | We repeat, 1t is evident that the
 classification of railroads for rates
 must be based on some substantial difference between, and resemblances of, roads relating to the necessity ana
 propriety of making differences be- tween them in rates to be allowed.
 Such. for instance, of the relative cost
 of production and maintenance of the
 roads and the probable gross as well
 as net income on given rates, which necessarily require the consideration of,
 and allowance for. every possible 1ac- tor influencing such results.
 No other circumstances can be sug- gested as proper to base classification upon except on the idea that it indi-
 cates and involves those just men
 tioned. Thus if the length of the road is adopted, it is on the idea that the
 greater length implies a greater ability
 to produce earnings than shorter roads s; but the presumption cannot be in- duged against the proved facts con | tradicting it. The respondents sug-
 gest that net earnings per mile on all business might have been the basis, land they have constructed tables l showing net earnings. But the proof l shows that not a dollar of these net
 earnings is intrastate and, of course, interstate net earnings can be no basis for intrastate rates or classification 169 U. S., 466; Minneapolis and St. Louis Railroad vs. Minnesota, 186 U. S. 257.
 It is next insisted that net intras,are
 earnings might have been the basis of classification and that there is no evil
 dence on this as to the several roads
 classified; but there Is no bookkeeping
 by the roads or other persons showing net intrastate earnings. There is no bookkeeping which conid show net in- trastate earnings of a railroad engaged ] in both interstate and intrastate com
 iDerce The separation of the cost of 1 interstate and intrastate Is an impos-
 sible problem, The counsel for respond ents say: "If there is any accurate method of ascertaining the value of 1 the property devoted to intrastate busi- ness, we have never heard of 1t and do
 not know what it is." The net intra- 1 state basis of revenue could not have
 been the basis of classification, and if it was the proof shows that the com plainants had none.
 | The witnesses for complainants, who are familiar with the roads in Ala bama, testify that there was and is no
 feature In the physical structure or oth- lerwise of complainants roads showing
 difference on which to found a classification to the disadvantage of lcomplainants as compared to the other
 roads, and they illustrate what they
 say by statement of particulars. This is direct evidence and Is uncontradicted and therefore must have weight. Or leans vs. Platt, 99 |. $. GIG. Differences iauthorizing classification must not be lconclusiVely occult and updiscoVerable. It seems clear that the statutes
 making a classification of railroads in
 the state for rates on freights and lagreements for the application and ad- ministration or the rate statutes be- tween the governor and the railroad
 commission of Alabama, as shown in the lcomplainants bill, deprive the complain lant of the equal protecuon of the laws and are unconstitutional and void Gulf C. and s. F. R. R. vs. Ellis, 165 U. s. 154; Michigan Tel Tax Cases. 1s5 Fed. 634; Atchison, Topeka and s. Ky. vs.
 Matthews. 174 U s. 1O4; Yick Wo vs.
 Hopkins, 11S |. s. 356 Sellers vs Hayes,
 16s Ind 442; Ayrs Appeal, 122 Pa. St. l277; State vs. Hammer, 42 N. ]. l.. 440;
 Cotting vs, Kansas, 1s3 '. s. 79.
 1t does not require as strong meas lure of proof to set aside legislative ac- ton in the ordinary fields committed to | it as where, as here, the action taken is. strictly speaking, administrative m 1 IAt m px nar r p Inventories and calculations of the value Of property upon which the lawmak- ling body without any hearing of the owner determines the reasonableness of a rate against hin. Constitutional rights are not to be enforced or de- nied upon technical grounds of plead lings or views of the burden of proof. The courts in the adjustment of rights are often compelled to ascertain the 1 existence of many things which are not | capable of proof by mathematical dem onstration and in ascertaining the ad- | justment of rights and the remedying of wrongs all that is possible or requisite | Is to get the best possible proof which the nature of the inquiry is susceptiS ble of, and that having oeen done. to de-
 termine the right accordingly, though l 1t cannot be proved to mathematical certainty.
 Rates COnfscatory
 The question of confiscation depends on the value of the property devoted to intrastate business and the return lthe proposed rates will yield Oh sucn value.
 As to this point we may dismiss
 from consideration the case of the l Nashville, Chattanooga and St. Louis | Railway company with few words. IThe complainant has made it's proof and submitted it's case on the theory that interstate and intrastate business cost the same, while every one who has
 studied the matter knows that it costs at least 25 cents more to earn a dollar in intrastate than in .iterstate bust ness The concession therefore is very l liberal to the respondents. On this basis, however. the proof clearly shows that the intrastate commerce of the
 complainant was conducted at a loss be- fore the passage of i-e laws in ques- ton. It is further ehown that the
 statutes materially reduced this roads
 earnings. As the rates previous to the statute were reasonable and such as were authorized by law, the statutory reductions complained of are clearly ieonfiscatory. The reason why the intra- state business of this complainant is so unremuneratiye is. because its roads in Alabama are short branch lines, in lall consisting of only 96 miles. in a sparsely settled country with little commerce. as the master pointed out in
 his report.
 | \ road may afford in some cases to 10
 a particular service at a loss. Thus, if other bushes, such as interstate com
 merce, compels the road to be kept up land operated, there are large expenses
 which must be incurred irrespective ot | l,o, ,,l., .bor md In, afb