I concur in the conclusion reached in the foregoing opinion, but • will state my views upon some matters not specially referred to by Justice CANTY.
The complaint herein was filed under the provisions of subdivision e, § 8, c. 10, Laws 1887, as amended by Laws 1891, c. 106, § 1. This subdivision provides for such filing, the giving of notice to the common carrier, and a hearing before the commission, if the carrier refuses or neglects to change its tariff of rates as demanded in the complaint. After a hearing or investigation the commission makes its report to both complainant and carrier, and, if it finds by the evidence that the tariff of rates complained of is unequal or unreasonable, the “commission shall state wherein they are unequal or unreasonable, and shall make a tariff of rates, fares, charges and classifications which shall be substituted for the tariff complained of.” It is then provided that—
*413“Such tariff of rates, fares, charges or classifications, so made by the commission, shall be deemed and taken in all courts of this state as prima facie evidence that the tariff of rates, fares, charges or classifications so made is equal and reasonable, and such tariff so made shall be in full force and effect during the pendency of any appeal that may be taken in the matter to the courts.” 7
Here we find that by legislative enactment an order of the commission fixing and prescribing a tariff of rates must be deemed and taken, in all of the courts in our state, as prima facie evidence that the tariff so fixed and prescribed is equal and reasonable; the onus being thus cast upon the appealing carrier, in all of our legal tribunals and in all proceedings, to show that it is not. The burden of proof was therefore upon this respondent carrier to overcome the prima facie case presented in the court below by means of the order of the commission. And this burden rested upon the carrier at every stage of the trial, and in respect to all matters affecting its earning capacity, its sources of revenue, its operating expenses, the fixed charges, and the value of the investment.
The question then arising is whether, in all respects, the evidence justified and warranted the finding, in effect, that the tariff rates fixed by the order of the commission upon wheat, oats, barley, rye, and corn, and the mill products of these grains, were so unjust and unreasonable as to be confiscatory in their nature, and, when enforced, to operate as a practical destruction of the rights of property. The court below found that the tariff rates charged by respondent on grain prior to the order in controversy, which reduced the rates on the kinds of grain mentioned, and their mill products, about ten per cent., were low in comparison with rates on other classes of traffic; and it also found, should the rates complained of be reduced as ordered, that
“The evidence fails to show that there is any class of traffic in this state upon which the rates can be reasonably increased to make good the amount of such reduction.”
The finding that the rates complained of were low in comparison with rates on other classes of traffic, admitting that this find*414ing was supported by the evidence, does not tend to support the decision ultimately reached, that the rates fixed in the order were unjust and unreasonable; for the rates on other classes of traffic, when compared with rates on grain, might be much below what would be a just and reasonable compensation to the carrier. Nor would it follow from the fact that, by comparison, grain rates were lower than rates upon other commodities, that the rates upon these commodities could not be advanced so as to relieve grain from part of the cost of transportation, if sound business principles justified, or justice to the public demanded, such action. And when making the finding that the evidence failed to show that there was any class of traffic upon which the rates could reasonably be increased so as to make good the loss to the carrier arising from the reduction of revenues caused by the order, the court seems to have disregarded the rule that the burden of proof was on the respondent to show that the rates upon some other, or all other, classes of traffic, could not be raised so as to cover the reduction, and make good any decrease in its revenues growing out of the operation of the order, and to have overlooked the important .fact that it was not incumbent upon the complainant to show by a preponderance of evidence that the carrier’s loss by reason of the reduction of tariff rates upon the grains mentioned in the order could be made good by increasing, without injustice to any one, the tariff rates upon other classes of traffic.
It is well known that, in the business of transportation, common carriers are continually applying principles which are forced upon them by reason of peculiar conditions and situations. Competition between carriers and producers brings about these conditions and situations, and the result is that arbitrary rules must yield to hard, unyielding facts. Because of this the rate for carrying any particular commodity cannot always be regulated and governed by comparison with the rates fixed for other articles. These rules compel what appears at first glance to be discrimination between commodities. That this is an everyday practice with carriers, and that it is well known and justified in business circles, and is tolerated and approved because of the necessity, cannot be overlooked by the courts any more than it is by legislatures or by commission*415ers, or by the carriers themselves, when making schedules of rates for the transportation of either passengers or merchandise. And if this business policy actuates and influences the carriers themselves to disregard a rule of strict comparison and strict equality, as between bulk or weight or value of the various commodities, and to carry one article ma"ny more miles for the same money than they do another, although there may be no substantial difference in bulk or weight, or otherwise, between these two articles, and this is approved by the public as good business policy under the circumstances, there is no reason why the legislature or the commission should not be actuated, influenced, and governed by the same rule, And there is no reason why the- courts should not heed and act upon it when called upon to consider and review an order of the character of the one at bar.
No better rule for the government of a public commission or a court when investigating rates can be adopted than one applied by the railroads themselves, — a rule which will so adjust rates as to secure the largest interchange of commodities; a rule which will stimulate, encourage, and induce the movement of any commodity which can be produced in any section of the country in large quantities. Of course, such rates should not be established so low as to impose an unreasonable burden on other traffic, but should be fixed “so as to have reasonable relation to the cost of production, and the value of the transportation service to the producer and shipper.” The rule I speak of as being constantly recognized and acted upon by railroads has often been referred to and countenanced by the interstate commerce commission when considering the question of long and short hauls. In re Louisville, 1 Inters. Com. 31; Thurber v. New York, 3 Inters. Com. 473; Lehmann v. Southern, 4 Inters. Com. 1; Warner v. New York, Id. 32; In re Excessive Freight Rates, Id. 48. In fact, the rule which permits a greater rate per mile on the short haul than is charged upon the long is based upon the same principle as that which allows a greater rate to be charged upon certain classes of freight than upon other classes, where there is no material difference in weight, bulk, value, or cost of transportation,'and is justified by the same argument.
I am of the opinion that evidence should have been introduced *416in this case which would have supported a finding to the effect that there was no class of traffic in the state upon which rates could have been reasonably increased or fixed so as to make good the amount of reduction upon the articles mentioned in the order appealed from, and that without such a finding of fact the conclusion of the court below reversing the order of the commission was erroneous.
I see no reason for holding, as claimed by the appellants, that the court below erred in receiving the evidence tendered by the Northern Pacific Railway Company, or that it erred in basing its order of reversal upon the condition of the affairs of that road as shown by the evidence, if it was so based. I am of the opinion that the learned trial court adhered very closely upon the hearing to what was said in this case when it was here before upon this subject.8
I do not quite understand what was meant by the court below when it used the following language in its eighteenth finding of fact:
“The order appealed from does not constitute a tariff. It cannot be published as a tariff. It simply fixes the maximum rates upon the mileage basis.”
I think, when examining Schedule A, in which the rate in cents, per 100 pounds for various distances, commencing with 4 cents per 100 for 5 miles and under, and increasing for every 5 miles until the rate for 400 miles was fixed at 16.7 per 100, the court overlooked the order, for that concluded as follows:
“It is therefore ordered that the tariff rates and charges on the-above-mentioned articles be reduced, and fixed at the rates shown in said Schedule A.”
This was a fixing of the tariff rates by the commission, although it is quite possible that a schedule of rates based thereon would have to be prepared by the carrier for the use and guidance of its. employees. The order must be regarded as a tariff of rates upon a mileage basis between the points mentioned in the complaint. It is not operative elsewhere, although in terms it may be broad enough *417to cover the entire line of road owned or operated by the Great Northern Company.
If, by the fourth subdivision of the main opinion, this court means to hold that the district court can, upon appeal from an order fixing a tariff of rates made by the commission, determine what the rates should be, when unable to affirm the order, I must dissent. I am of the opinion that the court below did not err when it refused to find a just and reasonable freight rate for the commodities mentioned in the order, and when it held that it is without the purview of a court of law to determine the question. The claim of the appellant on this point is that power to find, fix, and determine what are reasonable rates is conferred by the statute which authorizes the court on appeal to affirm, modify, or reverse the order, in whole or in part, as justice may require. Laws 1891, c. 106, § 3, subd. d.9
The fixing of rates is a legislative or administrative function. It is not a judicial question, except as judicial power may be invoked and used to prevent and restrain an abuse of legislative or administrative authority, by the exercise of which a rate^jmreasonably low, and confiscatory in fact, has been established. When we consider that the commission has power to make many orders which do not affect or fix rates, but which are appealable, and may be modified by the courts, I am obliged to hold that the word “modify” comprises “only those modifications which would be an exercise of judicial power, and as not including modification essentially involving an exercise of legislative or administrative power.” Thus construing the word, we can give it an effect which harmonizes the section in which it is found with what was said in Reagan v. Farmers, 154 U. S. 362, 14 Sup. Ct. 1047, as follows:
“Courts are not authorized to revise or change the body of rates imposed by a legislature or a commission; they do not determine whether one rate is preferable to another, or what, under all circumstances, would be fair and reasonable as between the carriers and the shippers. They do not engage in any mere administrative work; but still there can be no doubt of their power and duty to inquire whether a body of rates prescribed by a legislature or commission is unjust and unreasonable, and such as to work a prac*418tical destruction to rights of property, and if found to be so, to restrain its operation.”
Commenting 'on this and other cases, the circuit court remarked in Chicago v. Dey, 38 Fed. 656, 663:
“It would be strange, indeed, after the various adjudications of the supreme court, if any court should assume to prescribe a schedule of rates.”
It has been invariably held that courts are without authority to change rate tariffs, when fixed by either legislature or commission. I see nothing in our statute which suggests that the well-settled rule' should be departed from.
G. S. 1894, § 386, subd. e.
60 Minn. 461.
G. S. 1894, § 393, subd. d.