A motion to dismiss the appeal herein was heretofore overruled. Chicago, etc., R. Co. v. Railroad Com., etc. (1906), 38 Ind. App. 439. The action was instituted by the filing of a verified complaint by the Romona Oolitic Stone Company against the appellant and the Vandalia Railroad Company, complaining of a joint rate on coal from the Greene county coal fields via the Vandalia line, Gosport Junction, and then over appellant’s line to Stinesville. The rate complained of was ninety-five cents per ton, which the commission reduced to eighty cents, the reduction applying solely to that part of the charge made by appellant for transportation o.ver its line. Complaint was also made of a rule by which appellant required its agents to way-bill such coal at actual weight but not less than ninety-five per cent of the marked capacity of the ear. The commission prohibited the enforcement of this rule in all cases where the car or cars furnished would *360not hold the quantity of coal in weight, equal to the marked carrying capacity of such cars.'
1. The questions which this court may decide, are, whether the rate fixed by the commission has been established in due form of law, under a valid law, by a valid commission, and whether such rate is a reasonable and therefore a lawful one. Chicago, etc., R. Co. v. Railroad Com., etc., supra. The averments of the complaint fix the scope of the commission’s inquiry. Acts 1905, p. 83, §3, cl. h, §5405c -Burns 1905.
2. The questions which come to this court are those made by “a concise written statement of its or his causes of complaint against the action of the commission.” ■ Acts 1905, p. 83, §6, §5405f Burns 1905. The insufficiency of the complaint is not thus questioned in the case at bar, but the order of the commission is challenged as being contrary to law and unsupported by evidence. No strictness of pleading is required by the act, and both the complaint filed with the commission and the concise written statement filed in this court must be liberally construed for the purpose of obtaining a disposition of the matters involved, upon their substantial merits.
3. Section seven of the act of 1905, supra (§5405h Burns 1905), is as follows: “In all trials under section six of this act, the burden of proof shall rest upon the plaintiff, who must show by clear' and satisfactory evidence that the rates, regulations, orders, classifications, acts or charges complained of are unreasonable and unjust to it or them.” The appellant correctly states that “in determining what is a reasonable rate for services, the value of the property employed and the expenses of operation should be considered.” Metropolitan Trust Co. v. Houston, etc., R. Co. (1898), 90 Fed. 683; Judson, Interstate Com., §135. It is not necessary to determine whether the action of the commission was supported by clear and satisfactory
*3614. evidence, for the reason that it is made to appear that, since the filing of the transcript herein, the appellant has issued and put in force a new proportional coal tariff in which the rate fixed conforms to the order of the commission appealed from, and that the rule whose enforcement was limited by the order of the commission has been superseded by an order' of the appellant which has been filed with the commission. This action reduces the questions raised by the appeal to moot questions. The sole object of the proceeding was to secure the reduction of the rate and nullification of said rule, and, if we were to hold that the burden resting upon the complainant had not been discharged and remand the case for further proceedings, there could be no- practical advantage thereby • gained, as the rates and rule complained of no longer exist. Rowe v. Bateman (1899), 153 Ind. 633.
5. Appellant seeks to meet this condition by asserting the fact that it will be liable to repay to shippers the amount collected by it from them in case the rate fixed by the commission, during the time between such order and the termination of the appeal, is affirmed. The litigation cannot be protracted for the purpose of deciding controversies which may arise between appellants and third persons, who are not parties thereto.
6. The principal argument in this case has been directed to the constitutionality of the railroad commission act. It is claimed that its provisions are withim the prohibition against class legislation contained in article 4, §23, of the Constitution of Indiana, and of the 14th amendment to the Constitution of the United States, as denying to appellant the equal protection of the laws, in providing “that this act shall not apply to street or interurban railroads.” Acts 1905, p. 83, §21, §5405v Burns 1905. The facts in the case at bar upon which the classification made by the act must either be condemned *362as arbitrary, without reason or defense, or approved as founded upon reason and distinction, differ from any facts heretofore considered by any court. The difference arises from the rapid development of modern methods and facilities for transportation. The points of similarity between interurban railroads uniting cities and towns long distances apart, and steam railways connecting the same cities and towns, are numerous. The statutes under which such corporations operate are to a large extent identical. The points of difference do not seem to be fundamental. The steam road might adopt electric power, but could scarcely, by so doing, render the act of 1905, supra, inapplicable to it. The substantial purpose which it was the evident intention of the legislature to accomplish does not depend upon minor points of difference between carriers of passengers and freight coming within its reason, and it is at least debatable whether the law which leaves one carrier free to influence trafile by the giving of special rates, rebates, drawbacks, and other devices, while such acts on the part of its competitor are prohibited and penalized, does not deny to the latter that equal protection of the law which is guaranteed by the 14th amendment to the federal Constitution; hut it is a rule of decisions that courts will not pass upon a constitutional question and decide a .statute to be invalid, unless a decision upon that very point becomes necessary to a determination of the cause. It has been repeatedly held, carrying the doctrine to its fullest extent, that constitutional questions will not be decided unless such decision is absolutely necessary to a disposition of a cause upon its merits. State v. Darlington (1899), 153 Ind. 1.
For the reason above stated, that the questions involved have been taken out of the realm of actual controversy, the appeal herein is dismissed. Hadley, J., not participating.