into by the said respondents and this complainant May 7th, 1898, as the new rates increased the rates provided in the said agreement. The complainant also alleged that the said new rates were excessive, unjust and unreasonable and that the rates fixed by the said agreement were just and reasonable. The answer of the Railroad Company denies the validity of the said contract to fix the rates and avers that the rates mentioned in the said contract were not reasonable at the time the contract was made and that they are not reasonable now. It further avers that the new rates are fair, just and reasonable. The other respondents did not file any answer.

The Lehigh Coal and Navigation Company filed its petition to intervene as complainant and alleged that the increased rates proposed by the said railroad company are excessive, unjust and unreasonable.

The Lehigh Coal and Navigation Company and the Lehigh and Wilkes-Barre Coal Company were joined as respondents with the Railroad Company as they are parties to the contract. The contract referred to made by the said respondents as parties of the first part and the said complainant as party of the second part, provides that the said parties of the first part shall sell and deliver to the complainant at its proposed plant at Hazard No. 2 buckwheat coal or culm to an amount not exceeding 3,600,000 tons within twenty years. It specified the amount to be delivered each year until 1902, and thereafter at the rate of 200,000 tons per annum. It fixed a rate per ton delivered at Hazard of 55 cents for coal from the Lehigh region and 70 cents from the Wyoming region. The rate for the transportation of the coal was to be 36 cents per ton from the Lehigh region and 51 cents per ton from the Wyoming region. Each of the said coal companies to furnish one-half of the amount of coal required. The contract included also rates on manufactured goods from the plant of the Zinc Company. This contract was carried out by the respondents until September 30, 1913, when the Railroad Company posted new rates of 60 cents per ton from the Lehigh region to Hazard and 75 cents per ton from the Wyoming region.

Upon proceedings in the Court of Common Pleas No. 3 of

Philadelphia County an injunction was granted restraining the Railroad Company from putting into effect the new rates until the matter had been determined by the Public Service Commission.

This Commission having decided that said contract is not effective to fix the rate of transportation it will not be necessary to give much more consideration to it. (Report and Order of the Public Service Commission of the Commonwealth of Pennsylvania dated March 7, 1916.)

The question before us is whether the new rates are just andreasonable, and if they are not, what are the just and reasonable rates that should be established.

The material facts are undisputed and may be briefly stated. The New Jersey Zinc Company is a corporation of the State of Pennsylvania having two manufacturing plants near Hazard and Palmerton Transfer in the Borough of Palmerton, County of Carbon, State of Pennsylvania. It manufactures zine, oxide and other products of zinc. The plant at Palmerton is known as the East Plant and that at Hazard as the West Plant. These two plants are about one mile apart and are connected by the Chestnut Ridge Railroad owned by the Zinc Company.

The Central Railroad Company of New Jersey leases and operates the Lehigh and Susquehanna Railroad Company which extends from Phillipsburg, New Jersey, to Scranton, Penna., with branches to the Wyoming and Lehigh Coal regions. The railroad is leased from the Lehigh Coal and Navigation Company. The Lehigh Coal and Navigation Company owns and operates coal mines in the Lehigh region.

The Lehigh and Wilkes-Barre Coal Company, controlled by the Central Railroad Company of New Jersey, owns and operates coal mines in the Lehigh and Wyoming regions.

The plants of the complainant are on the line of the Lehigh and Susquehanna Railroad. The principal concentration point for coal from the Lehigh region is Mauch Chunk and from the Wyoming region Ashley. The distance from Mauch Chunk to Hazard is 8.6 miles and from the collieries to Mauch Chunk 7.87 miles, making the distance from collieries to Hazard 16.47 miles.

The distance from the Wyoming region to Hazard is 56.47 miles. The distance from Hazard to Palmerton is 1.10 miles. The average length of haul from the Lehigh region is 26.7 miles and from the Wyoming region 65.7. The distance from Mauch Chunk to Phillipsburg, New Jersey, is 45.72 miles. The distance from the Lehigh region to Phillipsburg is 53.67 miles. The evidence does not show the distance from the Wyoming region to Phillipsburg but from a calculation of the distances from other points it would appear to be in excess of 95 miles. In 1898 the capacity of a coal car was 29 tons; now it is 43.

The Interstate Commerce Commission in the Anthracite Rate case, 35 I. C. C. 220, established a rate for pea and smaller sizes of coal on the Central Railroad Company of New Jersey to Phillipsburg from the Lehigh region at 73 cents per ton, and from the Wyoming region at 80 cents per ton. The greater amount of the coal delivered to the complainant is from the Lehigh region, the proportion being about 6-7 from the Lehigh region and 1-7 from the Wyoming region.

In accordance with our previous ruling and by admission. of the parties no question of discrimination is involved, nor is there any violation of the short and long haul clause of the Act of 1913 or the Constitutional provision. There does not appear to be any other customer for buckwheat or culm coal at Hazard and no coal of this character has been delivered at Hazard to any other than the Zinc Company for some years, and only a few tons have been delivered at any place between the coal region and Hazard. There is no allegation that anybody is discriminated against by reason of the rates established under the contract of 1898.

In determining what is a reasonable rate for transportation several important matters are to be considered. The cost of service to the carrier and a comparison of other rates established by the same or other carriers for the same or the like commodities under similar conditions are important.

The Railroad Company without any argument or question assumed that the burden of proving that the proposed increase was just and reasonable upon it. The rates having been posted

prior to January 1, 1914, it would seem from our decisions that the burden of proving that the proposed rates were unjust and unreasonable was on the complainant.

However as the parties to this proceeding have agreed that the burden is upon the respondent, as stated by counsel for the respondent in his opening address, we will consider the case in accordance with the procedure adopted by the parties.

The Railroad Company in support of its claim that the rates established in the latter part of 1913 were just and reasonable offered in evidence some thirty exhibits, including plans, statements and reports, and considerable testimony. Very much of it was of a general character as to the labor and trouble of transporting the coal caused by grades and mountainous conditions. Reference was made to the increased cost of transportation by reason of the Full Crew Law, the increase in wages, the Nine Hour Law and the expense on account of the irregularity of the traffic due to strikes and holidays in the mining regions. None of these matters, however, was sufficiently specific to indicate or show what it cost the Railroad Company to transport a ton of coal. The Railroad Company did not attempt to show this cost. Some of the testimony was very remotely related to the question before us. A good deal of it detailed conditions incident to the same kind of traffic at all the mining centers. It would be very difficult to find from it any help in determining what would be a proper and reasonable rate for this service. Testimony was offered of rates from other places so as to show by comparison that the rates which the Railroad Company proposed to establish are just and reasonable. Except as to the rates established by the Interstate Commerce Commission from the Lehigh and Wyoming regions to Phillipsburg none of the rates offered could have much effect in determining the question whether the rates proposed by the Railroad Company from the Lehigh and Wyoming regions to Hazard are just and reasonable. It is not necessary to give any consideration to these rates as those established by the Interstate Commerce Commission for this same territory are more closely allied to the conditions under which the coal is transported to Hazard.

The Railroad Company taking the rate of 73 cents for transportation of pea coal and smaller sizes from the Lehigh region to Phillipsburg established by the Interstate Commerce Commission in the Anthracite Rate Case No. 4914, 35 I. C. C. 220, offered in evidence in this proceeding, endeavored to establish the reasonableness of its present rates. It argued that the distance from the Lehigh region to Phillipsburg being 53.57 miles, if 73 cents be a reasonable rate for that distance, 75 cents would be reasonable for a haul from the Wyoming region to Hazard, which is 56.47 miles, and then after thus fixing the rate for a haul from the Wyoming region it takes from the 75 cents a differential of 15 cents, thereby establishing that the rate of 60 cents from the Lehigh region to Hazard is just and reasonable. This is very plausible but it does not prove what the Railroad Company contends for. A more logical way would be to take the Interstate Commerce Commission rate of 73 cents from the Lehigh region to Phillipsburg and from that determine what would be a proper rate from the Lehigh region to Hazard, being a part of the same route. This would show that if 73 cents is the proper rate for a haul of 53.57 miles that 60 cents would be an excessive rate for a haul of probably only 16.47 miles, or an average haul of 26.7 miles, which is stated to be the haul from the Lehigh region to Hazard.

If we hold respondent to the position which it assumed in taking upon itself the burden of proof we would be compelled if we considered only the testimony offered by it to rule that the rates which it proposed to establish are unjust and unreasonable.

The complainant also offered numerous exhibits, some twentyfive, and the testimony of a number of witnesses. It went very fully into matters which bear upon the question. It showed by several witnesses the cost per ton of transporting this coal, using for that purpose the reports of the Railroad Company and the evidence before the Interstate Commerce Commission in the Anthracite Rate cases (35 I. C. C. 220, and also that before this Commission in the coal case. It called as experts Russell C. Jones, traffic manager of the Industrial Traffic Association, of Philadelphia; John F. Stevens and John Hall Bowman, a part