Oliver Wendell Holmes, Jr.

“ There is some suggestion that at times the northern route may not be as good as the southern, although at other times it may be better; but the ground of the order avowedly was that the personal preferences of many travelers is to go by the southern way. If they do, it is said, they can select from a great variety of routes as far as Ogden, Utah; they can visit cities not reached by the northern lines; they can search over a wide area for homesteads; they can behold the natural beauties that may be rivaled but not repeated on the other roads. ”

“ The points between Portland and Seattle can be reached from the places mentioned at the other end of the route, by way of the Northern Pacific alone from St. Paul, or by way of the Chicago, Burlington, & Quincy to Billings, Montana, and then by the Northern Pacific for the last thousand miles; the Chicago, Burlington, & Quincy being jointly owned and controlled by the Northern Pacific and the Great Northern roads. But an average of 8,000 persons a year go by way of the Union Pacific to Portland, where, to go further, passengers have to change to the Northern Pacific line. ”

“ The authority of the Commission to establish through routes and joint rates is conditioned by the proviso that 'no reasonable or satisfactory through route exists.' Act of June 29, 1906, chap. 3591, § 4. 34 Stat. at L. 589, U.S.C.omp. Stat. Supp. 1909, p. 1158. It is urged that this condition is addressed only to the opinion of the Commission, and cannot be reexamined by the courts as a jurisdictional fact. The difficulty of distinguishing between a rule of law for the guidance of a court and a limit set to its power is sometimes considerable. ”