The Supreme Court does not sit as a board of review to substitute its judgment for that of the state. The question is whether the state rates are confiscatory. Where a car rier does both interstate and intrastate busi ness, in order to determine whether intra state rates offer a fair return, the value of the property therein employed and the rates prescribed must be considered separately, and profits and losses on interstate business cannot be offset. Property of the carrier not used in the transportation business cannot be included in the valuation as a basis for rate making; and it cannot be filed as such basis at a price above other similar property solely because it is used as a railroad, and increases in value over cost cannot be al lowed over the normal increase of other simi lar property. There should be proper de ductions for depreciation ; Minnesota Rate Cases, 230 U. S. 352, 33 Sup. Ct. 729, 57 L. Ed. 1511.
The Missouri acts establishing maximum rates, wholly intrastate, are not unconstitu tional. Such acts will not be declared con fiscatory, in the absence of clear and con vincing proof as to the value of the property used by the carrier and on which returns are based. General evidence as to assessed valuations, without showing the method of appraisement, are insufficient. The values of property used in interstate and intrastate business cannot be established by an appor tionment based on the gross revenue received from each class. One person attacking an act as confiscatory cannot rely on the fact that it deprives others of their property with out due process of law ; Missouri Rate Cases, 230 U. S. 474, 33 Sup. Ct. 975, 57 L. Ed. 1571.
An order of a state railroad commission prescribing maximum freight rates on intra state traffic will not be declared confiscatory when there is no proof of the value of the company's property within the state or of the receipts from its intrastate traffic or the value of that part of its property affected by the order ; Wood v. Vandalia R. Co., 231 U. S. 1, 34 Sup. Ct. 7, 58 L. Ed. —.
Stockholders are not the only persons to be considered; if the establishment of new lines of transportation should cause a dim inution in the tolls collected, that, in itself, is not a sufficient reason why the corpora tion maintaining the road should be allowed to maintain rates that would be unjust to those who use its property. It is not neces sary that all corporations exacting tolls should be placed upon the same footing as regards rates ; Covington & L. T. R. Co. v. Sandford, 164 U. S. 578, 17 Sup. Ct. 198, 41
L. Ed. 560.
The right to contest rates as confiscatory is not impaired by putting the rates into ef fect; Allen v. R. Co., 230 U. S. 553, 33 Sup. Ct. 1030, 57 L. Ed. 1625. Equity should hesi tate to interfere by injunction before the rates go into operation and a fair test has been made; and where, in an action brought before the rate took effect, the complainant failed to sustain the burden of showing clearly that a rate act was confiscatory, the bill should be dismissed without prejudice to bringing another action after the rate goes into effect if it then proves to be confiscatory ; Willcox v. Gas Co., 212 U. S. 19, 29 Sup. Ct. 192, 53 L. Ed. 382, 15 Ann. Cas. 1034.
Failure, in a state statute establishing a railroad commission, to provide for an ap peal from its orders, does not deny to the carrier access to the courts; Louisville & N. R. Co. v. Garrett, 231 U. S. 298, 34 Sup. Ct. 48, 58 L. Ed. -.
The only mode of judicial relief is by suit against the governmental authority that es tablished the rates or is charged with the duty of enforcing them ; In re Engelhard & Sons Co., 231 U. S. 646, 34 Sup. Ct. 258, 58 L. Ed.
Although the determination of whether a railway rate prescribed by .a state statute is so low as to be confiscatory involves a ques tion of fact, its solution raises a federal ques tion. over which the federal court has juris diction as one arising under the constitution of the United States ; Ex parte Young, 209 U. S. 123, 28 Sup. Ct. 441, 52 L. Ed. 714, 13 L. R. A. (N. S.) 932, 14 Ann. Cas. 764.
A statute requiring railroads to issue mile age books at certain rates does not impair the obligation of the contract in a previous law allowing a certain company to regulate its charges, since this grant is subject to the common-law rule that charges must be rea sonable and the legislature can declare what is reasonable ; Dillon v. R. Co., 19 Misc. 116, 43 N. Y. Supp. 320. Contra, Attorney Gen eral v. R. Co., 160 Mass. 62, 35 N. E. 252, 22 L. R. A. 112.
As to classification affecting lines less than fifty miles in length, see Knott v. R. Co., 230 U. S. 512, 33 Sup. Ct. 983, 57 L. Ed. 1596. Electric lines and street railways may be ex-', cepted from railroad rates ; id.
Where a carrier by mistake charged less for an interstate shipment of freight than the rate scheduled in accordance with the Interstate Commerce Act, the carrier may recover the sum due him under the act, for any contract at variance with the schedule rate is void ; Louisiana R. & Nay. Co. v. Holly, 127 La. 615, 53 South. 882.